Gonzalez et al v. Scaletta et al

Filing 203

MEMORANDUM Opinion and Order Signed by the Honorable Steven C. Seeger on 9/15/2021. Mailed notice. (jjr, )

Case: 1:17-cv-07080 Document #: 203 Filed: 09/15/21 Page 1 of 90 PageID #:2051

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUAN GONZALEZ and
STEFANY M. CARDENAS,

)
)
)
Plaintiffs,
)
)
v.
)
)
MICHAEL G. SCALETTA, et al.,
)
)
Defendants.
)
____________________________________)

Case No. 17-cv-7080
Hon. Steven C. Seeger

MEMORANDUM OPINION AND ORDER
The Chicago Police Department received a 911 call about a young woman who might
harm herself. Officers promptly arrived at her home for a wellness check. They knocked, but no
one came to the door. So they decided, in the heat of the moment, to go in.
As it turns out, the young woman, Plaintiff Stefany Cardenas, wasn’t home. But her
stepfather, Plaintiff Juan Gonzalez, was there. And he was more than a little surprised to see
police officers standing in his home, with guns drawn. The police directed him to sit on the
couch while they searched the place. They didn’t find her, so they left.
Cardenas and Gonzalez later filed suit, bringing claims for illegal entry and unlawful
search. They claim that the police had no legitimate justification for entering the home. They
also allege that the search was unreasonable, in both scope and duration. According to them, the
police looked in too many places, and stayed too long.
After extensive discovery, Defendants moved for summary judgment. They invoked the
emergency aid exception under the Fourth Amendment. They asserted qualified immunity, too.

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They also asserted judicial estoppel against Gonzalez because he failed to disclose this potential
claim when he filed for bankruptcy more than a year after the incident.
For the reasons stated below, the motion for summary judgment is granted in part and
denied in part on the claims brought by Cardenas. The officers received a call about a young
person who might be suicidal, so the emergency aid exception protected their decision to enter
the home. Qualified immunity protected that decision, too. But there is a genuine issue of
material fact about the reasonableness of the search, meaning where they looked and how long
they took.
The Court grants summary judgment to the Defendants on all claims brought by
Gonzalez. The doctrine of judicial estoppel protects the integrity of judicial proceedings, and
penalizes litigants who play fast and loose with the courts. Here, the search took place in 2015.
Gonzalez retained his current counsel in 2016 to investigate a potential claim. He then filed for
bankruptcy in 2017, and represented under oath that he had no potential claims.
The Court finds that Gonzalez failed to disclose a potential claim, and did so
intentionally. After telling the bankruptcy court that he had no claims of any value, he cannot
tell a jury that he has a valuable claim.
Background
On October 1, 2015, Plaintiff Stefany Cardenas was running late for work, and not for the
best of reasons. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 4 (Dckt. No. 125). She was
arrested the night before, and she didn’t leave the police station until 3:00 or 4:00 in the morning.
See Cardenas Dep., at 43:2-4 (Dckt. No. 124-12). She worked as a bank teller at Bank of
America, and she was scheduled to start at 8:30 a.m. Id. at 43:13-14; see Defs.’ Resp. to Pls.’
Statement of Additional Facts, at ¶ 2 (Dckt. No. 133). That’s not a lot of time for sleep.

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She called her boss, Maria Santiago, to let her know that she would be late. See Pls.’
Resp. to Defs.’ Statement of Facts, at ¶ 4 (Dckt. No. 125). The record does not reveal when she
called, or whether she predicted when she would arrive. But Cardenas told her boss about the
arrest during that phone call. See Cardenas Dep., at 44:18-20 (Dckt. No. 124-12) (“That morning
when I had called her to let her know I was going to be late, I let her know it was because I was –
I had been arrested the night prior.”).
Cardenas didn’t show up until 11:00 a.m., two and a half hours late. Id. at 43:15-17.
When Cardenas arrived, Santiago pulled her into an office to talk. See Pls.’ Resp. to Defs.’
Statement of Facts, at ¶ 5 (Dckt. No. 125); see also id. (“[P]laintiffs admit that Stefany’s
supervisor talked to her about being late to work.”).
Cardenas was “clearly upset” during the meeting, but she wasn’t crying. Id. at ¶ 7;
Cardenas Dep., at 45:16-20 (Dckt. No. 124-12). She divulged that she had been arrested not
once, but twice that week. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶¶ 3, 6 (Dckt. No.
125). Her boss wasn’t thrilled to hear it. In fact, Santiago told her that she potentially could lose
her job. See Cardenas Dep., at 46:17-19 (“After these arrests, my manager informed me that I
could potentially be terminated based on what they found; and there was going to be an
investigation.”).
Santiago picked up on the fact that Cardenas was upset, so she asked if Cardenas wanted
to talk with a counselor from the bank’s employee assistance program. See Pls.’ Resp. to Defs.’
Statement of Facts, at ¶ 7 (Dckt. No. 125). Cardenas called the counselor a short time later, and
they spoke for 10 to 20 minutes. Id. at ¶ 8. She shared that she was “extremely upset about
potentially losing her job and about the recent ending of a personal relationship.” Id.; see also

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Cardenas Dep., at 46:15-16 (Dckt. No. 124-12) (“They asked me how I’m doing, and I let them
know that I’m just extremely overwhelmed about everything.”).
After she hung up, Cardenas reached out to Santiago again. She said that she “wasn’t
okay” and “needed to leave.” See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 9 (Dckt. No.
125). Santiago allowed her to leave work early. Id. Cardenas testified that the second
conversation took place at some point between 11:00 a.m. and 1:00 p.m. See Cardenas Dep., at
47:14-16 (Dckt. No. 124-12). She then left.1
After Cardenas left work, Santiago called 911. See Pls.’ Resp. to Defs.’ Statement of
Facts, at ¶ 10 (Dckt. No. 125). The parties disagree about what, exactly, Santiago told the 911
operator. But it is undisputed that the dispatcher then reached out to officers on the beat, and
directed them to check on Cardenas.
Minutes after the 911 call, the Chicago Police Department dispatched two nearby
officers, Gina Liberti and Greg Giuliani, to the home of Cardenas for a well-being check. Id. at
¶ 11; Defs.’ Resp. to Pls.’ Statement of Additional Facts, at ¶ 10 (Dckt. No. 133). They were in
the area, in separate marked squad cars. See Defs.’ Resp. to Pls.’ Statement of Additional Facts,
at ¶ 4.
The dispatcher called them on the police radio. Officer Giuliani testified about what he
heard when he received the call:
Q:

Okay. So if you look at – on page – it’s marked as page 3. It’s
FCRL304. It’s the fourth row down. It shows that the dispatcher
put out a call for a well-being check at 1347, 10 hours?

A:

Yes.

1

The police did not know the full backstory about the back-and-forth between Cardenas and her boss
before they entered the home. In fact, they didn’t even know her name, let alone know the details of her
troubles at work. So, in that sense, the details of their colloquy are not relevant to the officers’ decision to
enter the home. Still, the Court provides the full background for context, and to tell the broader story.
What matters is what the officers knew when they entered the home.

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Q:

Did you – do you recall hearing that on the radio?
[Counsel’s objection to form]

A:

I believe that call was dispatched to me.

Q:

Okay. What – what were you told about why you needed to go
over to this house?
[Counsel’s objection to form]

A:

In so many words, it was a check the well-being, a young female
threatening to hurt herself, threatening to commit suicide.
*

*

*

Q:

Okay. And do you recall any more detail about what the
dispatcher told you about why a well-being check was needed?

A:

That I – the only thing I can recall is that a young woman was
threatening to hurt herself.

See Giuliani Dep., at 47:7-25, 50:5-9 (Dckt. No. 124-15). Officer Giuliani later repeated the
point, testifying that he heard about a girl who might harm herself:
Q:

And what – what was the matter of exigence, exactly?

A:

That the description of the call given to me was that a young
teenage girl was threatening to commit suicide, threatening to hurt
herself.

Id. at 57:16-20.
Officer Giuliani testified that he first learned about the situation when he received the call
on his radio:
Q:

And did you receive this information over the radio?

A:

Yes, I did. It was given to me as a radio assignment.

Id. at 48:9-12; see also id. at 89:15-18 (“All I remember is over the air, you know, threatening to
hurt herself, threatening to commit suicide. That’s all I remember over the air.”).
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Officer Liberti received a call from the dispatcher, too. (Or maybe the call. The parties
don’t explain if Officer Giuliani and Officer Liberti received the same call, or different calls.
Again, they were in different squad cars. The Court does not know if the same call is broadcast
to more than one car, all at once.). Officer Liberti testified that the dispatcher directed her to
check on the well-being of a girl:
Q:

Okay. So directing your attention to approximately two – excuse
me – to – excuse me – 1:45 p.m. on October 1, 2015. At some
point did you respond to a dispatch to go to 4819 North McVicker?

A:

Yes.

Q:

Okay. And what did you learn that led you to go to that location?

A:

I responded to a call from our dispatcher. It was a call of a check
well-being of a girl.

Q:

Okay. What did you recall being told by the dispatcher?

A:

That was it.

Q:

Check the well-being of a girl?

A:

Yes.

See Liberti Dep., at 57:18 – 58:6 (Dckt. No. 124-14); see also id. at 13:13-25 (explaining radio
calls from dispatchers).
She later added: “[T]he only information we got was check the well-being, that we’re
looking for a girl. That’s it.” Id. at 75:22-24. “Just the only information we had was what our
dispatcher told us.” Id. at 123:13-14. And in her view, a call to check on the wellbeing of
someone could mean just about anything: “Could have been someone sick, injured, possibly
threatening suicide. Someone needs help from the police. It’s – it could be anything.” Id. at
66:20-22; id. at 90:18-20 (“We’re looking for a young girl. We don’t know what’s going on.
We don’t know if she’s down in the basement or is hurt or in distress.”).
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In addition to the call on the radio, the 911 operator also prepared a written dispatch that
described the 911 call from Bank of America.2 The dispatch stated:
c/s [i.e., caller says] an employee came to work very distraught, over
events that happened this week c/s she stated she was depressed, they let
her talk to their employee asst. center and they told her to go get
evaluated.........c/s they have not been able to get in touch w/her since she
left.....they would like to have her car [sic] maria santiago [phone
number], and please let her know that she is ok....caller thinks this maybe
[sic] and apt but doesn[’]t know apt #...........nfi [i.e., no further
information]3
See Service Call Details (Dckt. No. 124-8) (ellipses in original).4 The dispatch included her
address, too. Id. And it identified the caller as Bank of America. Id.
Notice a few things. The dispatch described the employee as “very distraught” and
“depressed.” Id. It referred to “events that happened this week,” but didn’t reveal what those
events were. Id. The employee talked with the “employee asst. center,” and the bank “told her

Plaintiffs object to the dispatch as hearsay. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 10 (Dckt.
No. 125). The hearsay rule applies when an out-of-court statement is offered for its truth. See Fed. R.
Evid. 801(c). But here, the document isn’t offered for its truth. The dispatch has a bearing on the
knowledge and state of mind of the officers who (may have) read it. Also, Plaintiffs relied on the very
same document in support of their motion for summary judgment (which Judge Castillo denied) and their
response to Defendants’ motion. Compare Service Call Details (Dckt. No. 111-4) (the copy filed by
Defendants, which prompted an objection from Plaintiffs), with Service Call Details (Dckt. Nos. 110-8,
124-8) (the copies of the same document, filed by Plaintiffs). That said, Plaintiffs rightly call attention to
the fact that the summary of the dispatch by Defendants isn’t quite right. Defendants claim that “Santiago
sent Cardenas to be evaluated by a hospital,” and they cite the dispatch as support. See Defs.’ Statement
of Undisputed Facts, at ¶ 10 (Dckt. No. 111) (emphasis added); see also Service Call Details (Dckt. No.
124-4). But the dispatch did not say anything about a hospital. The dispatch says that Bank of America
“told her to go get evaluated.” See Service Call Details (Dckt. No. 111-4). It would not be unreasonable
to interpret the phrase “go get evaluated” to mean “go get evaluated by a hospital,” but that’s not the only
possible interpretation.
3
Officer Scaletta testified that “c/s” means “caller says.” See Scaletta Dep., at 105:11-19 (Dckt. No.
124-13). And “nfi” means “no further information.” Id. at 106:5-8.
4
There are a few different copies of the dispatch in the record. It appears in a document called Service
Call Details (Dckt. No. 111-4) and a document called Event Query (Dckt. No. 111-7). Defendants filed
unredacted versions. Plaintiffs also filed the Service Call Details (Dckt. No. 124-8), and filed a document
called Event Query (Dckt. No. 124-7), but the formatting of the latter document (Dckt. No. 124-7) is
different than the version filed by Defendants (Dckt. No. 111-7). Also, Plaintiffs redacted part of the
substance of the dispatch in the Event Query (Dckt. No. 124-7), even though the unredacted version
appears in Defendants’ version and in Plaintiffs’ copy of the Service Call Details (Dckt. No. 124-8).
2

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to go get evaluated.” Id. But since she left work, the bank could not get ahold of her. There was
an expression of concern, too: “please let her know that she is ok.” Id.
There is some wiggle room in the record about whether Officer Giuliani and Officer
Liberti ever saw the dispatch, meaning the written notice itself (in addition to the call on the
radio). The parties – especially the Plaintiffs – take it as a given that the officers saw the written
message from the dispatcher.
For example, in their response to Defendants’ statement of facts, Plaintiffs agreed that
“the following information was given from the dispatcher to police officers,” and then quoted the
written dispatch. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 17 (Dckt. No. 125) (emphasis
added); see also Pls.’ Statement of Facts, at ¶ 26 (Dckt. No. 107) (same). According to
Plaintiffs, the “defendant officers would have seen the text of this oral service call almost
verbatim as a text message on their in-car computers.” See Pls.’ Resp. to Defs.’ Statement of
Facts, at ¶ 17 (Dckt. No. 125) (emphasis added); see also Pls.’ Statement of Facts, at ¶ 27 (Dckt.
No. 107) (same).
In their filings, Defendants agree that they “would have seen” the written dispatch. In
their statement of additional facts, Plaintiffs stated that the “defendant officers would have seen
the text of the oral service call contained in the event report from the Office of Emergency
Management and Communications,” and then quoted the written dispatch. See Pls.’ Statement of
Additional Facts, at ¶ 13 (Dckt. No. 123) (emphasis added). Defendants agreed, responding:
“Defendants admit.” See Defs.’ Resp. to Pls.’ Statement of Additional Facts, at ¶ 13 (Dckt. No.
133).
So, the parties seem to agree that the officers “would have” seen the written dispatch.
But the supporting testimony was wishy-washy, at best. Officer Giuliani testified about the call

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on the radio, but he did not remember receiving any additional information. See Giuliani Dep.,
at 48:23 – 49:1 (Dckt. No. 124-15). He testified that the dispatcher “probably” would have sent
it to him, but he didn’t recall receiving it. After Plaintiffs’ counsel marked and read the dispatch,
counsel elicited the following testimony:
Q:

So the – the remarks that I just read, do you recall being given
those remarks from the dispatcher?

A:

I don’t recall. That was a long time ago. But if it was available,
probably would have sent it to me or given it over the air, if that
helps any.

Q:

If you had an in-car computer, would that information have come
in on your in-car computer?

A:

If it was updated from the dispatcher.

Id. at 51:24 – 52:8. Notice the play in the joints: he didn’t recall seeing the written dispatch, but
the dispatcher “probably” would have sent it “if it was available.” Id. And it would have come
to his in-car computer “if” it was updated from the dispatcher. Id.
Officer Liberti, for her part, did not testify about whether she ever saw the written
dispatch. The parties cite no supporting testimony from Officer Liberti on this point (meaning
whether she ever saw the written dispatch). Based on the Court’s review of the transcript, she
wasn’t asked.
In sum, Officers Giuliani and Liberti testified about what they heard the dispatcher say
when they received a call on the radio. The two officers did not testify that they actually read it.
But the parties seem to agree that they “would have” received the written dispatch, too. So the
Court will accept, as a stipulation within the meaning of Rule 56, that the officers “would have

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seen” the written dispatch, in addition to receiving the radio call.5 See Fed. R. Civ. P.
56(c)(1)(A) (allowing a district court to consider “stipulations”).
The parties agree that everything the officers knew came from the dispatcher. See Defs.’
Resp. to Pls.’ Statement of Additional Facts, at ¶¶ 12, 22 (Dckt. No. 133). They did not speak
with anyone from Bank of America. They did not listen to the 911 call, either. Id. They did not
know the age of the “girl,” or whether she was home. Id. at ¶¶ 10–11; Liberti Dep., at 58:19-23
(Dckt. No. 124-14) (stating that “all they said was ‘girl’”); id. at 75:15 – 76:8 (stating that the
officers did not know if the girl was home).
Turning back to the story, Officers Liberti and Giuliani knocked on the door when they
arrived. See Defs.’ Resp. to Pls.’ Statement of Additional Facts, at ¶ 23 (Dckt. No. 133). Officer

5

Plaintiffs attempt quite a maneuver, attempting to flip the testimony to mean that the officers knew only
what was in the written dispatch.
In response to Defendants’ statement of facts, Plaintiffs contend that “[w]hen confronted with the text of
the dispatcher communication, defendant Giuliani admitted that he did not know anything outside of what
the dispatcher had typed as remarks in the Event Query.” See Pls.’ Resp. to Defs.’ Statement of Facts, at
¶ 17 (Dckt. No. 125) (citing Giuliani Dep., at 52–53 (Dckt. No. 124-15)). That’s not a fair depiction what
Officer Giuliani actually said. He repeatedly testified about the oral dispatch that he received over the
radio. See, e.g., Giuliani Dep., at 47:7 – 48:12, 50:5-9, 53:8-10. He testified: “All I remember is that I
got a call about a girl that was said to be threatening suicide.” Id. at 53:8-10; see also id. at 91:18-21
(agreeing that the written dispatch “might not be the complete information that was given to you before
you arrived at the address”). In response to the requests to admit, Officer Giuliani denied that the
information in the Search Call Search (i.e., the written dispatch) was “the only information he or she had
regarding” the exigency of the situation. See Giuliani Resp. to Request to Admit, at ¶ 15 (Dckt. No.
124-3). That answer was consistent with the notion that he received information orally, during the radio
call. In response to Defendants’ statement of facts, Plaintiffs point to the next bit of testimony, where
Officer Giuliani was asked if he had “any other information outside of what was in these remarks,” and he
said “[t]hat’s all I recall.” See Giuliani Dep., at 53:16-18; Pls.’ Resp. to Defs.’ Statement of Undisputed
Facts, at ¶ 17. No reasonable person would interpret that answer as a retraction of his repeated testimony
about what he heard during the call over the radio. He squarely testified that he remembered that radio
call, but didn’t recall the written dispatch. In fact, he testified about that very subject only two questions
earlier.
Here’s the bottom line: Officer Giuliani did not testify that he knew the information in the written
dispatch, and only the information in the written dispatch. Plaintiffs are standing the evidence on its head.
The officers testified that they remembered only the oral call (and not the written dispatch), but Plaintiffs
turn it upside down and argue that the officers knew only what was in the written dispatch.

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Giuliani testified that he did not announce himself as a police officer when he arrived at the door.
See Giuliani Dep., at 56:9 – 57:5 (Dckt. No. 124-15); see also id. at 57:5 (“There was no reason
to.”). But Officer Liberti testified that she did, in fact, identify herself as a police officer:
Q:

Did you say anything directed at any occupants of the house when
you were outside the house? Did you say anything at – when you
were knocking at the door?

A:

Yes. “Police, police.” That’s probably about it.

Q:

Police, police.

A:

Police, yes.

Q:

Okay. Did you –

A:

“Hello. Police.”

Q:

Did Giuliani say anything?

A:

I don’t recall.

See Liberti Dep., at 80:7-18 (Dckt. No. 124-14). So one of the two officers testified that she
announced herself as the police (and there’s no evidence that she didn’t).6
No one answered the door. Officer Liberti tried the doorhandle, and found it unlocked.
So the two officers walked right in. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶¶ 14–16
(Dckt. No. 125); see also Defs.’ Resp. to Pls.’ Statement of Additional Facts, at ¶ 24 (Dckt. No.
133). They had no warrant, and no permission to enter.

6

In their statement of facts, Plaintiffs contend that the officers did not announce themselves as the police
when they were at the front door. See Pls.’ Statement of Additional Facts, at ¶ 23 (Dckt. No. 123). But
Plaintiffs cite the testimony of Officer Giuliani only. Id. Officer Liberti testified that she did, in fact,
announce herself as the police. See Liberti Dep., at 80:7-18 (Dckt. No. 124-14). That testimony is not
inconsistent with the testimony of Officer Giuliani. Officer Giuliani testified that he didn’t identify
himself as a police officer, and Officer Liberti testified that she did announce herself as a police officer.
Each person testified about what they personally did, without undermining the other person’s testimony.

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At that point, the officers had no way of knowing who, if anyone, was inside, or what
they were doing. But as it turned out, Stefany Cardenas was not there. But her stepfather, Juan
Gonzalez, was at home in the basement.
Once inside, the officers announced their presence. They called out: “Who’s in here?
Chicago Police.” See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 18 (Dckt. No. 125). Their
guns were drawn. Id. at ¶ 20; see also Defs.’ Resp. to Pls.’ Statement of Additional Facts, at
¶ 26 (Dckt. No. 133).
The officers didn’t find anyone on the main floor, but they heard someone in the
basement. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 19 (Dckt. No. 125). That was
Plaintiff Gonzalez, and he heard them too. He realized that they were officers when they
announced their presence. Id. at ¶ 21; Defs.’ Resp. to Pls.’ Statement of Additional Facts, at ¶ 28
(Dckt. No. 133).
The parties dispute what happened next. The officers claim that they ordered the person
in the basement to come upstairs, but he refused. See Defs.’ Statement of Undisputed Facts, at
¶ 21 (Dckt. No. 111). According to Defendants, Officers Liberti and Giuliani then called for
backup. Id. at ¶ 22. Four other officers – Sergeant Michael Scaletta and Officers Gregory
Schoen, Chris Maksud, and Sam Bubalo – heard the call and arrived on the scene. Id. at ¶ 23.
Plaintiffs tell a different story. Plaintiffs contend that Gonzalez came upstairs
“immediately” after he realized officers had entered his home. See Pls.’ Resp. to Defs.’
Statement of Facts, at ¶ 21 (Dckt. No. 125). That’s a bit of an overstatement. Gonzalez testified
that he came upstairs, but he didn’t testify (in the cited pages, anyway) that he came upstairs
immediately. See Gonzalez Dep., at 32, 43–45 (Dckt. No. 124-11).

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Whatever the delay (if any), Gonzalez came upstairs and discovered police officers in his
home. Officer Liberti pointed a gun at him. See Defs.’ Resp. to Pls.’ Statement of Additional
Facts, at ¶ 28 (Dckt. No. 133). He saw Officers Giuliani, Maksud, and Schoen with their guns
out, too. Id.; Pls.’ Resp. to Defs.’ Statement of Facts, at ¶¶ 23–24 (Dckt. No. 125). Gonzalez
saw five to ten officers in his home.7 See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 28; Defs.’
Resp. to Pls.’ Statement of Additional Facts, at ¶ 31.
Officer Liberti pointed a gun toward Gonzalez for between five and fifteen seconds, and
didn’t say anything. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶¶ 31–32 (Dckt. No. 125).
The police ordered Gonzalez to sit on the couch, and stay on the couch. Id. at ¶¶ 33, 35.
Gonzalez said that he wanted to talk with a lawyer (though he didn’t have one). Id. at
¶ 34. He also asked the officers if they had a warrant, and told them to leave. See Defs.’ Resp.
to Pls.’ Statement of Additional Facts, at ¶ 31 (Dckt. No. 133). He was “very upset” that police
officers were in his home without a warrant. Id.
According to Gonzalez, Officer Maksud lunged at him, but Sergeant Scaletta held his
fellow officer back. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 33 (Dckt. No. 125).
Defendants deny it, but the fact is not material. See Defs.’ Resp. to Pls.’ Statement of Additional
Facts, at ¶ 34 (Dckt. No. 133). Gonzalez admits that there was no physical contact at any time –
the police did not touch him or restrain him. See Gonzalez Dep., at 82:8-16 (Dckt. No. 124-11);

7

The parties disagree about whether Officer Bubalo entered the home, too. The parties agree that Officer
Bubalo arrived outside the home when the other officers called for backup. See Pls.’ Resp. to Defs.’
Statement of Facts, at ¶ 23 (Dckt. No. 125). Officer Bubalo testified that he stayed in his vehicle, and did
not enter the home. See Bubalo Dep., at 51:9-15 (Dckt. No. 124-16). Gonzalez did not squarely
contradict him. Gonzalez testified that “five to ten police officers” entered his home. See Pls.’ Statement
of Additional Facts, at ¶ 31 (Dckt. No. 123); Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 25; Gonzalez
Dep., at 32:15-18 (Dckt. No. 124-11). Defendants agree. But testimony about the number of officers is
not the same thing as testimony about the identities of those officers. There is evidence that Officer
Bubalo arrived outside the home, but there is no testimony that Officer Bubalo entered the home.

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see also 1/4/19 Bankr. Tr., 07:52 – 09:13 (Dckt. No. 180); 3/3/21 Tr., at 24:19-21 (Dckt. No.
201).
A search followed. The officers began to search the home, room by room, looking for
Cardenas. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 41 (Dckt. No. 125). But Cardenas
wasn’t home, so they didn’t find her. Id. at ¶ 47. The officers did not attempt to contact
Cardenas, and did not ask Gonzalez to call her. See Defs.’ Resp. to Pls.’ Statement of Additional
Facts, at ¶ 30 (Dckt. No. 133).
The parties disagree about the extent of the search. Defendants state that they were
looking for Cardenas, and that they moved only the covers on her bed. See Defs.’ Statement of
Undisputed Facts, at ¶¶ 41, 43 (Dckt. No. 111). “In every other area that Gonzalez believed the
police searched, nothing was out of place.” Id. at ¶ 45.
According to Plaintiffs, the officers made a mess of things. They assert that the officers
were not only looking for Cardenas. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 41 (Dckt.
No. 125). “Defendants searched through the entire house, the second floor, the first floor, and
the basement, including under bedcovers and inside of drawers.” Id. Gonzalez and Cardenas
each testified that their bedrooms were in disarray, and that items in their drawers had been
moved around. Id. at ¶¶ 43–44; see also Pls.’ Statement of Additional Facts, at ¶ 39 (Dckt. No.
123). According to Cardenas, the officers had “gone . . . into the drawers in her dresser,
including the drawer in which she kept her underwear.” See Pls.’ Resp. to Defs.’ Statement of
Undisputed Facts, at ¶ 43.
The parties disagree about how long the officers were inside the home. The officers
claim that they stayed only 10 to 15 minutes. See Defs.’ Statement of Undisputed Facts, at ¶ 46
(Dckt. No. 111). But Gonzalez testified that the officers were there for “35–45 minutes.” See

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Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 46 (Dckt. No. 125). The “Event Query” indicates
that the 911 call came through at 1:36 p.m., the dispatch occurred at 1:47 p.m., and the event was
closed at 2:22 p.m. See Defs.’ Resp. to Pls.’ Statement of Additional Facts, at ¶ 36 (Dckt. No.
133). The officers deny that this timeline implies that they were physically present in the home
the entire time. Id.
In the end, the police officers did not find Cardenas. So they left.
Taking a step back, the parties disagree about a number of details, but the overarching
story is undisputed. The Chicago Police Department dispatched Officers Giuliani and Liberti to
the home in question to perform a wellness check for a distraught “girl.” They entered after
knocking, and announced themselves as the police once inside (if not before). They conducted a
search, but did not find Cardenas because she was not home. But Gonzalez was there, and the
police required him to sit on the couch while the police looked around the place. The officers
did not touch him. The whole episode lasted 45 minutes (tops), or maybe much less.
Procedural History
Gonzalez and Cardenas filed suit in September 2017. See Cplt. (Dckt. No. 1). They
brought five claims against more than a dozen officers, plus the City of Chicago.
Both Plaintiffs bring the first two claims. Count I is a claim for both illegal entry and
unlawful search. They fault the police for entering their home without a warrant, without
probable cause, and without permission. So Count I challenges both the entry into the home, and
the search of the home.
Count II is another claim for unlawful search. But instead of challenging the fact of the
search, Plaintiffs challenge its scope and duration. They claim that the search was too wide, and
lasted too long.

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Count III is a claim for illegal detention by Gonzalez (only). He alleges that the police
wrongfully detained him during the search.
Count IV is a claim by both Plaintiffs against Sergeant Scaletta (only).
Count V is a claim against the City of Chicago for indemnification.
The parties embarked on extensive discovery. See 1/23/18 Order (Dckt. No. 40); 7/31/18
Order (Dckt. No. 78). In the final months, Plaintiffs voluntarily dismissed nine defendants. See
7/19/18 Order (Dckt. No. 75); 8/22/18 Order (Dckt. No. 87).
The parties filed cross motions for summary judgment. See Pls.’ Mtn. for Summ. J.
(Dckt. Nos. 106); Defs.’ Mtn. for Summ. J. (Dckt No. 108). Plaintiffs argued that the police did
not have a warrant, and that the emergency aid exception did not apply.
Judge Castillo (this Court’s predecessor, before reassignment) ruled on one of the two
summary judgment motions. Judge Castillo denied Plaintiffs’ motion for summary judgment at a
hearing one week after filing. See 6/25/19 Order (Dckt. No. 115).
In the accompanying Order, Judge Castillo explained that the parties offered “competing
versions of the facts.” See 6/25/19 Order, at 1 (Dckt. No. 116). In the Court’s view, Plaintiffs
“proffer[ed] facts showing that there was no emergency justifying Defendants’ warrantless
entry,” and Defendants “proffer[ed] facts showing that they had a reasonable basis to believe that
they needed to enter Plaintiffs’ home without a warrant and vigorously search Plaintiffs’ home to
save Plaintiff Stefany Cardenas’ life.” Id. Judge Castillo concluded that the “dueling versions of
the facts” precluded judgment in Plaintiffs’ favor on the claims about an unlawful entry and an
illegal search. Id. at 1–2. The Court also concluded that the “competing accounts” precluded
summary judgment in favor of Plaintiffs on the remaining counts. Id. at 2.

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Defendants filed a motion for summary judgment, too. See Defs.’ Mtn. for Summ. J.
(Dckt. No. 108). That motion remained pending when this case was reassigned.
Defendants’ motion for summary judgment covered some of the same ground as
Plaintiffs’ motion for summary judgment. But there was one major exception. Defendants
moved for summary judgment based on judicial estoppel.
Gonzalez, it turns out, filed for bankruptcy in January 2017. He filed the bankruptcy
petition eight months before filing this lawsuit in September 2017, but more than a year after the
incident in 2015. He had to list his assets as part of that bankruptcy filing.
But Gonzalez never mentioned any potential claims when he made representations to the
bankruptcy court about his assets. He never disclosed anything about the incident with the
police. He ultimately received a discharge without disclosing the potential claims against the
police as an asset. After his non-disclosure came to light in his deposition in this case, Gonzalez
went back to the bankruptcy court and finally informed the trustee.
According to Defendants, Gonzalez intentionally failed to disclose his claims as a
potential asset, and thus committed a fraud on the court. So, in their view, Gonzalez cannot
bring those claims now.
Judge Castillo ruled on Plaintiffs’ motion for summary judgment. So this Court’s task is
to rule on the motion for summary judgment filed by Defendants.
Legal Standard
A district court “shall grant” summary judgment “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). A genuine dispute of material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of
establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). To survive summary judgment, the opposing party must go beyond
the pleadings and identify specific facts showing the existence of a genuine issue for trial. See
Anderson, 477 U.S. at 256.
The Court construes all facts and reasonable inferences in the light most favorable to the
nonmoving party. See Chaib v. Geo Grp., Inc., 819 F.3d 337, 341 (7th Cir. 2016). The Court
does not weigh the evidence, judge credibility, or determine the truth of the matter, but rather
determines only whether a genuine issue of triable fact exists. See Nat’l Athletic Sportswear,
Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Summary judgment is appropriate
if, on the evidence provided, no reasonable jury could return a verdict in favor of the nonmovant. See Celotex Corp., 477 U.S. at 322; Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–
73 (7th Cir. 2012).
Discussion
I.

Illegal Entry (Count I)
The first claim is about the entry into the home. Plaintiffs claim that the officers violated

their Fourth Amendment rights when they entered their home without a warrant and without
permission.
Defendants argue that the entry was reasonable under the emergency aid exception. They
also contend that qualified immunity applies. The Court agrees.
A.

The Emergency Aid Exception

The Fourth Amendment protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const.

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amend. IV. “It is a ‘basic principle of Fourth Amendment law that searches and seizures inside a
home without a warrant are presumptively unreasonable.’” Brigham City v. Stuart, 547 U.S.
398, 403 (2006) (citation omitted).
“The ‘very core’ of this guarantee is ‘the right of a man to retreat into his own home and
there be free from unreasonable governmental intrusion.’” Caniglia v. Strom, 141 S. Ct. 1596,
1599 (2021) (quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)). The Supreme Court has
emphasized the “overriding respect for the sanctity of the home that has been embedded in our
traditions since the origins of the Republic,” because the home “provide[s] the setting for those
most intimate activities that the Amendment is intended to shelter from government interference
or surveillance.” Oliver v. United States, 466 U.S. 170, 178–79 (1984) (cleaned up); see also
Jardines, 569 U.S. at 6 (“But when it comes to the Fourth Amendment, the home is first among
equals.”). In life, and under the law, home is a special place.
But the text of the Constitution does not prohibit all entries into a home. “To be sure, the
Fourth Amendment does not prohibit all unwelcome intrusions ‘on private property,’ – only
‘unreasonable’ ones.” Caniglia, 141 S. Ct. at 1599 (citation omitted). The primary exception, of
course, is a search or seizure conducted with a valid warrant. Id. Exigent circumstances create
another exception.
Under the exigent circumstances doctrine, officers can enter and search a home without a
warrant when the situation requires them to act quickly. Id.; Brigham City, 547 U.S. at 403
(“[W]arrants are generally required to search a person’s home or his person unless ‘the
exigencies of the situation’ make the needs of law enforcement so compelling that the
warrantless search is objectively reasonable under the Fourth Amendment.”) (quoting Mincey v.
Arizona, 437 U.S. 385, 393-94 (1978)). Officers don’t always have time to get a warrant, and

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the sensitivities of the situation may require immediate action. See Sutterfield v. City of
Milwaukee, 751 F.3d 542, 557 (7th Cir. 2014) (“[A] warrantless entry into a dwelling may be
lawful when there is a pressing need for the police to enter but no time for them to secure a
warrant.”).
Examples of exigent circumstances include the destruction of evidence, the hot pursuit of
a suspect, or a risk that a suspect may escape. Id.; see also id. at 560 (“Exigency cases thus
typically speak either of there being probable cause to believe a crime is being or has been
committed or of the need to act in order to fulfill the probable cause requirement, as by
preventing a suspect from fleeing or preserving evidence that might otherwise be destroyed.”).
Exigent circumstances sometimes involve criminality, but not always. Sometimes police
respond to emergencies that don’t involve crimes. That reality gave rise to the emergency aid
doctrine, which is a subcategory of the exigent circumstances doctrine.8 Id. at 553 (noting that
the Supreme Court has deemed the emergency aid exception to be a “subset of the exigent
circumstances doctrine”); Brigham City, 547 U.S. at 403 (“One exigency obviating the
requirement of a warrant is the need to assist persons who are seriously injured or threatened
with such injury.”) (emphasis added).

A related exception is the community caretaking doctrine. “The community caretaking doctrine
recognizes that police sometimes take actions not for any criminal law enforcement purpose but rather to
protect members of the public . . . .” Sutterfield, 751 F.3d at 553; see also Cady v. Dombrowski, 413 U.S.
433, 441 (1973) (“Local police officers . . . frequently investigate vehicle accidents in which there is no
claim of criminal liability and engage in what, for want of a better term, may be described as community
caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating
to the violation of a criminal statute.”). Until recently, there was a circuit split about whether the
community caretaking doctrine applies to homes. See Sutterfield, 751 F.3d at 554. While the motion for
summary judgment was pending, the Supreme Court decided Caniglia v. Strom, 141 S. Ct. 1596 (2021).
The Supreme Court ruled that the community caretaking doctrine is limited to cars and does not apply to
homes. Id. at 1598; id. at 1600 (“What is reasonable for vehicles is different from what is reasonable for
homes.”).
8

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The emergency aid doctrine “recognizes that a warrantless entry into the home may be
appropriate when police enter for an urgent purpose other than to arrest a suspect or to look for
evidence of a crime.” Sutterfield, 751 F.3d at 557; see also Gaetjens v. City of Loves Park, 4
F.4th 487, 492 (7th Cir. 2021); Caniglia, 141 S. Ct. at 1599 (“We have also held that law
enforcement officers may enter private property without a warrant when certain exigent
circumstances exist . . . .”).
An urgent purpose includes “the need to ‘render emergency assistance to an injured
occupant or to protect an occupant from imminent injury.’” Caniglia, 141 S. Ct. at 1599
(quoting Kentucky v. King, 563 U.S. 452, 460, 470 (2011)); see also Michigan v. Fisher, 558
U.S. 45, 49 (2009); United States v. Richardson, 208 F.3d 626, 629 (7th Cir. 2000) (“‘The Fourth
Amendment does not bar police officers from making warrantless entries and searches when they
reasonably believe a person within is in need of immediate aid.’”) (quoting Mincey, 437 U.S. at
392); Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (“Reasonable fear for the safety of
a person inside a premises is one such exigent circumstance.”). A threat to personal safety may
create an urgent need for immediate action. “The need to protect or preserve life or avoid serious
injury is justification for what would be otherwise illegal absent an exigency or emergency.”
Brigham City, 547 U.S. at 403 (quoting Mincey, 437 U.S. at 392).
A suicide threat counts as an exigent circumstance. See Sutterfield, 751 F.3d at 557
(stating that one of the “[r]ecognized exigencies” is a “danger of imminent injury,” including
“suicide”); Fitzgerald, 707 F.3d at 731–32; 3 Wayne R. LaFave, Search and Seizure § 6.6(a) (6th
ed. 2020) (“Doubtless there are an infinite variety of situations in which entry for the purpose of
rendering aid is reasonable. Included are those in which entry is made to thwart an apparent
suicide attempt . . . .”).

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If a person is in danger, it does not matter who the danger comes from. It makes no
difference if the threat comes from someone else, or if the threat comes from the person in need.
If the police can enter a home because Person X is about to harm Person Y, then the police can
enter a home because Person X is about to harm Person X.
The emergency aid doctrine reflects the realities of day-to-day, boots-on-the-ground
police work. Police do more than investigate crimes. Members of the community call the police
for all sorts of needs, and crime prevention and investigation is only part of their job.
Sometimes, for example, there is a call for help when there is no crime. For that reason, “courts
from the United States Supreme Court on down have long recognized the important role that
police play in safeguarding individuals from dangers posed to themselves and others – a role that
will, in appropriate circumstances, permit searches and seizures made without the judicial
sanction of a warrant.” Sutterfield, 751 F.3d at 551.
The exigent circumstances doctrine “is judged by an objective standard: we ask whether
it was reasonable for the police officers on the scene to believe, in light of the circumstances they
faced, that there was a compelling need to act and no time to obtain a warrant.” Id. at 557. An
objective standard governs the emergency aid doctrine, too. “The test for this exception is also
objective: the question is whether the police, given the facts confronting them, reasonably
believed that it was necessary to enter a home in order to render assistance or prevent harm to
persons or property within.” Id. at 558 (cleaned up). “The officers’ subjective motive for the
entry – be it to quell violence or to make an arrest, for example – is irrelevant; what matters is
whether the facts, viewed objectively, justified the action taken by the police.” Id.
Police sometimes act to prevent harm, and rightly so. They do not need to sit back, and
wait for something bad to happen. “[I]t would be silly to suggest that the police would commit a

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tort by entering . . . to determine whether violence . . . has just occurred or is about to (or soon
will) occur . . . .” Georgia v. Randolph, 547 U.S. 103, 118 (2006); see also Brigham City, 547
U.S. at 406 (“The role of a peace officer includes preventing violence and restoring order, not
simply rendering first aid to casualties . . . .”); United States v. Bell, 500 F.3d 609, 612 (7th Cir.
2007).
The reasonableness of the conduct depends on what the police knew at the time, not what
they learned later. “The reasonable belief must be based on actual knowledge the officers had at
the time of the entry, rather than on knowledge acquired after the fact.” Fitzgerald, 707 F.3d at
730; see also United States v. Arch, 7 F.3d 1300, 1304 (7th Cir. 1993) (“[T]he government must
establish that the circumstances as they appeared at the moment of entry would lead a
reasonable, experienced law enforcement officer to believe that someone inside the house,
apartment, or hotel room required immediate assistance.”).
B.

Applying the Emergency Aid Doctrine

The case at hand fits comfortably within the emergency aid doctrine. Officers Giuliani
and Liberti received a call from the dispatcher to perform a well-being check. The situation was
objectively serious, by any possible measure. The dispatcher reported that a girl was threatening
suicide.
Officer Giuliani testified about the substance of the radio call. “In so many words, it was
a check the well-being, a young female threatening to hurt herself, threatening to commit
suicide.” See Giuliani Dep., at 47:23-25 (Dckt. No. 124-15). And again: “the description of the
call given to me was that a young teenage girl was threatening to commit suicide, threatening to
hurt herself.” Id. at 57:18-20; see also id. at 50:8-9 (“That I – the only thing I can recall is that a
young woman was threatening to hurt herself.”).

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There is no evidence that Officer Giuliani did not receive that call. And there is no
evidence that the dispatcher said something else over the radio, either. By all appearances,
Plaintiffs did not depose the dispatcher (or at the very least, there’s no transcript in the record).
The only testimony about what Officer Giuliani heard came from Officer Giuliani.
Plaintiffs apparently don’t believe him. In their filings, Plaintiffs were rather pointed in
their commentary about his testimony: “That was something Giuliani made up.” See Pls.’ Resp.
to Defs.’ Statement of Facts, at ¶ 13 (Dckt. No. 125); id. at ¶ 17 (“Neither Liberti nor Giuliani
had been given any information that a person was suicidal. This is made up.”). That argument –
which is only half a step above name calling – does not get Plaintiffs anywhere.
Plaintiffs basically argue that they aren’t buying what he’s selling. But a party cannot
create a genuine issue of material fact by arguing that a witness is not credible. A plaintiff
cannot “defeat a defendant’s properly supported motion for summary judgment . . . without
offering any concrete evidence from which a reasonable juror could return a verdict in his favor
and by merely asserting that the jury might, and legally could, disbelieve the defendant’s denial
. . . .” See Anderson, 477 U.S. at 256–57; see also Fletcher v. Hoeppner Wager & Evans, LLP,
775 F. App’x 240, 241 (7th Cir. 2019) (“Fletcher’s evidence suggests only that a jury might
disbelieve Golomb’s evidence . . . . But a plaintiff cannot get to a jury simply by casting doubt
on the defendant’s evidence; ‘[i]nstead, the plaintiff must present affirmative evidence in order to
defeat a properly supported motion for summary judgment.’”) (quoting Anderson, 477 U.S. at
257); Scherer v. Rockwell Int’l Corp., 975 F.2d 356, 361 (7th Cir. 1992) (“Scherer may not
defeat Rockwell’s properly supported summary judgment motion without offering any evidence
from which a jury could determine that the alleged sexual harassment did not actually occur and

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by merely asserting that the jury might disbelieve Rockwell’s witness . . . .”). Trials don’t
happen based on “liar liar pants on fire.”
Hurdling over the summary judgment bar requires evidence, not skepticism. See Fed. R.
Civ. P. 56(c)(1) (requiring the non-moving party to offer evidence of its own, or show that the
proffered evidence from the moving party does not support the motion). Officer Giuliani
testified about what he heard, so Plaintiffs needed to come forward with contrary evidence of
what Officer Giuliani heard. But instead, Plaintiffs come empty-handed. There’s no contrary
evidence in the record about what Officer Giuliani heard before he walked up to the door.
Officer Giuliani did not know for certain that the young person was threatening herself.
And he didn’t know why she was in peril. But he heard that she was threatening suicide, and
that was enough. “Officers do not need ironclad proof of ‘a likely serious, life-threatening’
injury to invoke the emergency aid exception.” See Fisher, 558 U.S. at 49 (citation omitted). He
may not have known the full details of the story, but he knew the headline, and the headline
justified quick action.
Plaintiffs seem to think that Giuliani’s testimony was incompatible with the content of
the written dispatch. But they were not incompatible at all. The radio call described a suicidal
person who was threatening to hurt herself. The written dispatch described a “very distraught”
and “depressed” person who needed help and who went off the grid. See Service Call Details
(Dckt. No. 124-8).
Those two pieces of information can live together, without any conflict. Suicidal people
tend to be distraught and depressed. And even if there were conflict, Officer Giuliani could have
acted based on the most serious version of the two.

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True, the testimony from Officer Liberti did not reflect the same level of gravity. She
testified that she received a radio call, and that the dispatcher directed her to do a well-being
check on a girl. See Liberti Dep., at 57:23 – 58:6 (Dckt. No. 124-14). “It was a call of a check
well-being of a girl.” Id. at 58:1. The dispatcher did not give her the reason for the well-being
check. Id. at 58:12-18. Unlike Officer Giuliani, Officer Liberti did not testify that the dispatcher
mentioned suicide.
But it makes no difference. Officer Liberti entered the home with Officer Giuliani, and
Officer Giuliani heard the dispatcher mention a possibility of suicide. Two officers could have
entered the home as a team even if (hypothetically speaking) only one officer had received a call.
A call to only one officer was enough. From a Fourth Amendment perspective, they were in for
a penny, so they were in for a pound. If a policeman or policewoman could enter, then
policemen and policewomen could enter, too.
It was objectively reasonable for both officers to enter the home, even if only one of the
two calls mentioned suicide. The Fourth Amendment did not require the officers to apply a
default rule in favor of the least-serious version of the calls. The officers did not need to whittle
it down, treating the least-serious call like a lowest common denominator. There’s no
presumption in favor of the least-serious version of events.9
The Seventh Circuit has applied the emergency aid exception in other cases involving a
threat of suicide. In Fitzgerald v. Santoro, 707 F.3d 725 (7th Cir. 2013), a woman called a nonemergency number of a neighboring police department, and made statements that the officer
interpreted as suicidal. Id. at 727–28. That officer kept her on the line while he called the police

If someone told you “your house is on fire,” and someone else said “your house is not on fire,” you
probably wouldn’t ignore the first comment, and go about your business. And if you heard someone say
“your house is on fire,” and heard someone else say “there might be a problem at your house,” you would
probably head home.
9

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in the woman’s town and described a “very depressed” and possibly suicidal caller. Id. at 728.
The dispatcher informed the officers that she had recently miscarried and had made suicidal
statements. Id. She stayed on the line with the dispatcher the whole time, but when the officers
approached her home, she hung up. Id.
The Court of Appeals concluded that it was objectively reasonable for the police to enter
her home without a warrant. “They had been told that the woman inside had called a police
station, that she sounded intoxicated, and that she had threatened suicide.” Id. at 732. They
knew that she had hung up, too. Id. Taken together, those facts “paint[ed] an objectively
reasonable picture of an exigent circumstance.” Id.
Here, too, Officer Giuliani received a radio call from the dispatcher about a person who
was a danger to herself. The dispatcher sent him right away to look for a “young teenage girl”
who “was threatening to commit suicide, threatening to hurt herself.” See Giuliani Dep., at
57:18-20 (Dckt. No. 124-15). He didn’t know why she was suicidal, and he didn’t know every
last detail. But he did hear that she was young – a “girl,” who was “young” and “teenage.” Id.
The youth of the person added volatility. True, Cardenas turned out to be older, but it makes no
difference because the officers did not know her true age at the time. The officers heard that a
young person was in distress, and it was objectively reasonable to try to protect her from herself.
In Sutterfield, a psychiatrist at a hospital called 911 about a distressed patient. See
Sutterfield, 751 F.3d at 545. She let the police know that a patient had just left an appointment
after expressing suicidal thoughts, namely: “I guess I’ll go home and blow my brains out.” Id.
She wore an empty gun holster to that appointment, driving the point home. Id.
The police couldn’t find her. They visited her home, but she didn’t respond, and a
neighbor told them that she wasn’t home. Id. But they did receive a follow-up call from the

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psychiatrist a few hours later, who reported that his patient wanted her to “call off” the police
search. Id.
They returned to the home that evening, more than eight hours after the first call. This
time, she answered the knock at the door, but would not engage, and told them to leave. Id. at
546. After more officers arrived, she continued to refuse to let them in. Id. at 547. She said she
was fine. Id. The officers then yanked the door open, and forcibly entered. Id.
Once again, the Seventh Circuit held that the emergency aid doctrine justified the
warrantless entry into her home. The Court of Appeals concluded that there were exigent
circumstances, even though more than eight hours had passed since the police received the tip.
Id. at 560–62. The fact that the patient came to the door, and said that she was fine, was not
enough to make the emergency go away. “[N]othing transpired at the front door of her home
that might have put the police on notice that the emergency that had been reported by
Sutterfield’s physician . . . had dissipated.” Id. at 561–62.
The Seventh Circuit warned against “second-guessing” the police on the scene, who
faced a potential life-and-death situation. Id. at 562. “How were the officers to know that
Sutterfield was competent to assess the state of her own mental health or that, regardless of what
she herself said, there was no longer any risk that she might harm herself?” Id.
Here, too, the police received a call about a person who was threatening suicide. Unlike
the officers in Sutterfield, the officers here did not speak directly with the source of the tip, and
they didn’t know the full backstory, either. But they did know that a young person was
potentially in trouble. And unlike Sutterfield, they did not have the reassurance of seeing an
alive-and-ostensibly-well person answer the door. When Officers Giuliani and Liberti knocked,
no one answered. So they acted on the spot, and entered.

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This Court, like the Seventh Circuit in Sutterfield, will not second-guess that decision.
What, exactly, were the police supposed to do? Officer Giuliani heard that a young person was
threatening to kill herself. When they knocked on the door, no one answered. Were the police
supposed to leave it at that, call it a day, and drive away?
Courts do not engage in second-guessing when police err on the side of protecting life in
the heat of the moment. “[W]hen police are acting in a swiftly developing situation . . . a court
must not indulge in unrealistic second-guessing.” Leaf v. Shelnutt, 400 F.3d 1070, 1092 (7th Cir.
2005) (quotation marks omitted). As Chief Justice (then Judge) Burger once wrote, “the
business of policemen and firemen is to act, not to speculate or meditate on whether the report is
correct. People could well die in emergencies if police tried to act with the calm deliberation
associated with the judicial process.” Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.
1963) (Burger, J., concurring) (emphasis added). Not everyone has the luxury of sitting back in
chambers, taking the necessary time, figuring out what to do.
Viewed as a whole, it was objectively reasonable (and understandable) for the police
officers to enter the home. Preventing harm to young people is a high societal value. And here,
the police had enough information to reasonably believe that a tragedy might take place if they
didn’t act, and act right away.
C.

Qualified Immunity

The entry into the home was objectively reasonable, based on what Officer Giuliani heard
on the radio at the time. But even if it were not, Plaintiffs still would not have a claim. Qualified
immunity would protect officers’ decision to enter the home and check on her well-being.
“Qualified immunity shields a government official from suit when the official is
performing a discretionary function and his conduct does not violate clearly established rights of

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which a reasonable person would have known.” Sutterfield, 751 F.3d at 572. Qualified
immunity gives officers the benefit of the doubt when they make decisions without crossing
well-established boundaries. “‘Officials are not liable for bad guesses in gray areas; they are
liable for transgressing bright lines.’” Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (quoting
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).
“Once an officer asserts qualified immunity, a plaintiff can proceed with his case only if
he can show (1) that the ‘facts, taken in the light most favorable to [him], make out a violation of
a constitutional right,’ and (2) that right was ‘clearly established at the time of the alleged
violation.’” Koh v. Ustich, 933 F.3d 836, 844 (7th Cir. 2019) (quoting Gill v. City of Milwaukee,
850 F.3d 335, 340 (7th Cir. 2017)). “‘If either inquiry is answered in the negative, the defendant
official’ is protected by qualified immunity.” Id. (quoting Reed v. Palmer, 906 F.3d 540, 546
(7th Cir. 2018)) (emphasis in original).
When a defendant raises the defense of qualified immunity, the plaintiff bears the burden
to demonstrate “that the right is clearly established such that ‘the contours of the right are
sufficiently clear that a reasonable official would understand that what he is doing violates that
right.’” Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013) (quoting Denius v. Dunlap,
209 F.3d 944, 950 (7th Cir. 2000)). To satisfy this standard, the right must have been clearly
established “in a particularized sense, rather than at a high level of generality.” Alicea v.
Thomas, 815 F.3d 283, 291 (7th Cir. 2016); see also Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011) (“We do not require a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.”).
Cardenas has not carried her burden. In response to the motion, Cardenas has not come
forward with any case demonstrating that the officers violated a clearly established right. If

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anything, the case law flows in the other direction. In Fitzgerald and Sutterfield, the Seventh
Circuit allowed officers to enter homes without a warrant after receiving calls about a potential
suicide. Cardenas offers no countervailing case law from the Seventh Circuit.
Instead, Cardenas argues that “qualified immunity is not appropriate” because “[t]he legal
issues are dependent upon and are inseparable from disputed facts.” See Pls.’ Resp. to Defs.’
Mtn. for Summ. J., at 13 (Dckt. No. 126). She relies heavily on the written dispatch, and argues
that the knowledge of the officers was confined to the four corners of that notice.
Plaintiffs argue that the officers knew only the information in the written dispatch, and
nothing else. As a factual matter, that argument cannot get off the ground. Officers Giuliani and
Liberti testified about the contents of a radio call from the dispatcher. As explained above (see
footnote 5), the notion that the officers only knew the information in the written dispatch is
simply not correct.
If anything, the evidence about whether the officers read the written dispatch is murky at
best. But even if they read the dispatch, they would not un-hear what the dispatcher told them.
Knowledge from the written dispatch would have supplemented, not superseded, knowledge
learned from the call with the dispatcher.
And even if the officers read the dispatch, and knew nothing else (i.e., without a radio
call), Plaintiffs would not have a claim. Qualified immunity would protect the officers even if
they responded to the written dispatch, without receiving the radio call.
The written dispatch did not exactly downplay the situation. Quite the contrary. The
dispatch warned about a troubled woman who needed help. See Service Call Details (Dckt.
No. 124-8). Specifically:

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c/s [i.e., caller says] an employee came to work very distraught, over
events that happened this week c/s she stated she was depressed, they let
her talk to their employee asst. center and they told her to go get
evaluated.........c/s they have not been able to get in touch w/her since she
left.....they would like to have her car [sic] maria santiago [phone
number], and please let her know that she is ok....caller thinks this maybe
[sic] and apt but doesn[’]t know apt #...........nfi [i.e., no further
information]
Id. (ellipses in original).
The dispatch described her mental state as “very distraught” and “depressed.” Id. (Dckt.
No. 124-8). The dispatch did not explain why she was upset, but it ominously referred to “events
that happened” that week. Id. The employee received help from the “employee asst. center,” but
it was not enough. Id. Bank of America thought that she needed more help, and “told her to go
get evaluated.” Id.
The employee left work, and then went AWOL. Id. Her boss was trying to reach her, but
could not get in touch with her. Id. So her supervisor at the bank wanted the police to get
involved and check on her well-being. Id. And the message – “please let her know that she is
ok” – conveyed a level of concern, at a very human level. Id.
That written dispatch included loads of indicia that trouble was afoot. It did not expressly
mention suicide, but it didn’t need to. The Fourth Amendment did not require the use of the
“s-word.” The dispatch gave plenty of reasons to think that the “distraught” and “depressed”
employee – who left work early, needed “to go get evaluated,” and couldn’t be reached – was not
in a good place.
Even if the officers knew what was in the written dispatch, and nothing else, qualified
immunity would protect their decision to enter the home. Cardenas has the burden of showing

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that entry into a home to check on a “distraught” and “depressed” person violated a clearly
established right. Cardenas has not carried her burden.
At best, Cardenas attempts to distinguish Fitzgerald and Sutterfield. It’s true that there
are some differences between those cases and the case at hand. But to carry her burden,
Cardenas would need to come forward with something on her side of the ledger, meaning case
law that found a violation of a clearly established right in a comparable situation. And she
hasn’t. Her discussion of qualified immunity is only a few paragraphs long, and she offers no
case law of her own. See Pls.’ Resp. to Defs.’ Mtn. for Summ. J., at 12–13 (Dckt. No. 126).
Cardenas argues that there were “no grounds for a reasonable belief that 1) a person in
need was physically at the location of 4819 N. McVicker Avenue, 2) a serious injury or threat of
serious injury had taken place, or 3) an injury or danger was imminent.” Id. at 12. Actually, the
written dispatch laid the groundwork for all three. Bank of America gave the dispatcher her
address, and home is a logical place to go when looking for someone. There was a reason to
believe that the employee was unwell and needed help right away. That was the reason for the
911 call in the first place.
Taking a step back, it is important to remember that the events unfolded in real-time, and
officers had to make quick decisions about the well-being of another person. The police on the
spot – in the heat of the moment – did not have the luxury of sitting back and carefully parsing
case law. There was no time to ponder how this case fits within the body of Fourth Amendment
jurisprudence.
They had to make a decision about what to do when a young woman was a threat to
herself. And they decided to act. That decision did not violate any clearly established right, so
the officers are entitled to qualified immunity.

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“Qualified immunity is supposed to protect officers in the close case, and it therefore
must apply to the officer’s snap judgment in a legally hazy area.” White v. Stanley, 745 F.3d
237, 241 (7th Cir. 2014). “Put simply, qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law.” Mullenix v. Luna, 577 U.S. 7, 11 (2015)
(cleaned up). “[D]efendants here enjoy qualified immunity ‘if a reasonable officer could have
believed’ . . . that the officers’ entry into [plaintiff’s] home . . . was constitutional.” Wonsey v.
City of Chicago, 940 F.3d 394, 400 (7th Cir. 2019) (citation omitted).
The officers here had more-than-ample reason to believe that entering a home to check on
a suicidal person was permissible. So Plaintiffs have no claim.10
*

*

*

One final word. Justice Kavanaugh’s concurring opinion in Caniglia demonstrates the
necessity of giving officers some leeway when responding to emergency situations to protect the
community. Justice Kavanaugh provided “[a] few (non-exhaustive) examples [that] illustrate”

10

This Court does not need to reach whether the officers would have enjoyed qualified immunity under
the community caretaking function, too. This Court will simply note that Illinois courts have recognized
the ability of police to enter homes under that doctrine, and have done so before and after the events in the
case at hand. Illinois courts have applied the community caretaking doctrine to justify warrantless entries
into homes both before and after the officers’ October 1, 2015 entry. See, e.g., People v. Hand, 408 Ill.
App. 3d 695, 349 Ill. Dec. 343, 946 N.E.2d 537, 545 (2011) (finding officers’ warrantless entry into home
reasonable under the community caretaking exception); People v. Mikrut, 371 Ill. App. 3d 1148, 309 Ill.
Dec. 717, 864 N.E.2d 958, 962–63 (2007) (holding that police acted within their “community caretaking
function” when they entered a home for the limited purpose of preventing domestic disturbance); People
v. Foresta, 2021 IL App (2d) 190434-U, ¶ 28 (2021) (unpublished) (holding that officers’ entry into home
“clearly fell within the ambit of the community-caretaking doctrine” when officers “were aware of a
report . . . that he might be suicidal”); People v. Kolesnikov, 2020 IL App (2d) 180787, 443 Ill. Dec. 889,
162 N.E.3d 1040, 1041, 1046 (2020) (holding that officers who responded to 911 call about a potentially
suicidal subject were justified in entering the home under the community caretaking doctrine). In
Sutterfield, the Seventh Circuit noted that a state court’s application of the community caretaking doctrine
to homes is relevant, even though the Seventh Circuit itself had not applied that doctrine to homes. See
Sutterfield, 751 F.3d at 573 (“In the absence of a controlling decision by the United States Supreme
Court, the Wisconsin cases are thus as relevant as our own precedents in evaluating what a Milwaukee
police officer might have thought the law permitted in responding to a report that the occupant of a
private dwelling was in danger of harming herself.”).

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some “heartland emergency-aid situations.” Caniglia, 141 S. Ct. at 1604 (Kavanaugh, J.,
concurring); see also Gaetjens, 4 F.4th at 493 (citing the example of an emergency-aid situation
from Justice Kavanaugh’s Caniglia concurrence). One of his examples refers to a person who
may be suicidal:
Suppose that a woman calls a healthcare hotline or 911 and says that she is
contemplating suicide, that she has firearms in her home, and that she might as
well die. The operator alerts the police, and two officers respond by driving to the
woman’s home. They knock on the door but do not receive a response. May the
officers enter the home? Of course. . . . The Fourth Amendment does not require
officers to stand idly outside as the suicide takes place.
Caniglia, 141 S. Ct. at 1604 (Kavanaugh, J., concurring) (emphasis added).
Officers do not have to wait for catastrophe. They can try to prevent it. “The officers do
not need to show that the harm has already occurred or is mere moments away, because knowing
that will be difficult if not impossible in cases involving, for example, a person who is currently
suicidal . . . . If someone is at risk of serious harm and it is reasonable for officers to intervene
now, that is enough for the officers to enter.” Id.
“[W]hen police are acting in a swiftly developing situation . . . a court must not indulge in
unrealistic second-guessing.” Leaf, 400 F.3d at 1092. This Court cannot second guess the
officers’ decision to enter the home to ensure Cardenas’s safety.
Defendants are therefore entitled to qualified immunity on the warrantless entry claim.
The Court grants the officers’ motion for summary judgment on the illegal entry claim (Count I).
II.

Unlawful Search (Counts I & II)
Plaintiffs also brought two claims about the search of their home. They divided that

concept in two. Count I is about existence of the search (plus the entry into the home), and
Count II is about the scope and duration of the search. Taken together, they argued that the
search shouldn’t have happened at all, and in any event, it was too broad and lasted too long.
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The Court will first address the fact of the search (Count I), and then will address its
scope and duration (Count II).
A.

The Search Itself (Count I)

“[S]earches and seizures inside a home without a warrant are presumptively
unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quoting Payton v. New York, 445
U.S. 573, 586 (1980)). The officers argue that once inside Plaintiffs’ home, they were entitled to
perform a protective sweep to guarantee their safety and the safety of any occupants. They also
argue that the search is protected by qualified immunity. See Defs.’ Mem. in Supp. of Mtn. for
Summ. J., at 8 (Dckt. No. 109).
The Court agrees. If the police could enter the home to look for someone (to check on
her well-being), then they could search for her once inside. The search was the whole point of
the entry. The police could do a protective sweep, too.
“[A] protective sweep is a quick and limited search of premises conducted to protect the
safety of police officers or others.” United States v. Starnes, 741 F.3d 804, 807 (7th Cir. 2013).
Upon entering a home, officers can “look in closets and other spaces immediately adjoining the
place of arrest from which an attack could immediately be launched” “as a precautionary matter
and without probable cause or reasonable suspicion.” Maryland v. Buie, 494 U.S. 325, 334
(1990). “The search must be cursory, lasting no longer than is necessary to dispel the reasonable
suspicion of danger. It must also be limited to a cursory visual inspection of places where a
person might be hiding.” Starnes, 741 F.3d at 808 (citing Buie, 494 U.S. at 327, 335–36).
The officers must base the need for a protective sweep on “specific and articulable facts.”
United States v. Henderson, 748 F.3d 788, 791 (7th Cir. 2014). That need is apparent in a case
like this one, when there is a specific and articulable basis for a concern about self-harm or

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suicide (i.e., violent acts). In Sutterfield, the Seventh Circuit observed that the officers’ entry
into the home also justified a protective sweep. See Sutterfield, 751 F.3d at 566 (“Given our
conclusion that the forced entry was reasonable, the sweep that resulted in the discovery of the
locked compact disc case . . . was also reasonable . . . .”). The same holds true here.
Once inside the home, the officers were entitled to perform a cursory visual search for
any person who might harm them or others, and search for Cardenas. After all, finding Cardenas
was the reason for entering the home in the first place. And in any event, performing a search
did not violate clearly established law, and thus receives protection under qualified immunity.
See Pearson v. Callahan, 555 U.S. 223, 243–44 (2009) (“An officer conducting a search is
entitled to qualified immunity where clearly established law does not show that the search
violated the Fourth Amendment.”).
The Court grants Defendants’ motion for summary judgment on the claim about the fact
of the search (Count I). The Court now turns to the claim about the scope and the duration of the
search (Count II).
B.

The Scope and Duration of the Search (Count II)

There is a genuine issue of material fact about the scope and the duration of the search.
So the Court denies the motion for summary judgment on Count II.
A protective sweep has limits, in space and time. It involves a “cursory visual inspection
of places where a person might be hiding.” Starnes, 741 F.3d at 808 (citation omitted). The
search can “last[] no longer than is necessary to dispel the reasonable suspicion of danger.” Id.;
see also Henderson, 748 F.3d at 793 (holding that scope and duration of protective sweep were
reasonable where a SWAT team conducted a “cursory” sweep that “lasted no longer than five
minutes” and where “nothing was touched or moved”).

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Defendants offered evidence that they performed a limited search of the home to locate
Cardenas. They don’t specify the length of the search itself, but they offer evidence that they
were in the home for only ten to fifteen minutes (total). See Defs.’ Statement of Undisputed
Facts, at ¶¶ 41, 46 (Dckt. No. 111). And according to the officers, they didn’t make a mess.
Nothing was out of place. Id. at ¶¶ 43–45.
But Gonzalez testified that the police were in his home for 35 to 45 minutes. See Pls.’
Resp. to Defs.’ Statement of Facts, at ¶ 46 (Dckt. No. 125). Plaintiffs also offered evidence that
the police left the house in disarray, and did so for no legitimate reason. Cardenas and Gonzalez
testified that the officers rifled through their drawers, searching furniture and areas where
Cardenas herself could not possibly be hidden. Id. at ¶¶ 41, 43–44; see also Pls.’ Statement of
Additional Facts, at ¶ 39 (Dckt. No. 123). Cardenas testified that the officers had “gone . . . into
the drawers in her dresser, including the drawer in which she kept her underwear.” See Pls.’
Resp. to Defs.’ Statement of Undisputed Facts, at ¶ 43.
Opening and searching through drawers and moving items around are outside the scope
of a protective sweep for a person or an item in plain sight. See Sutterfield, 751 F.3d at 566
(“Opening the locked compact disc case was a significant step beyond the search authorized by
Buie. The case was obviously too small to be hiding a person . . . .”); see also id. at 567–68
(noting that authorizing a full search of the premises after entry to address potential suicide,
“including closed containers, for firearms” would be “license to conduct virtually a top-tobottom search of the home, as almost any closet, drawer, or container theoretically could contain
a handgun (or other potential implements of self-harm)”). Cardenas couldn’t fit in the dresser
drawers, so there was no reason to go through them.

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Qualified immunity doesn’t apply to this claim, either. It is clearly established that a
search beyond the scope of a protective sweep is unconstitutional unless the officers have
articulable facts to justify expanding the search. See Sutterfield v. City of Milwaukee, 870 F.
Supp. 2d 633, 641 (E.D. Wis. 2012), aff’d, 751 F.3d 542 (7th Cir. 2014) (observing that during a
protective sweep, when “dangerous materials” are not in “plain sight,” officers “cannot go
looking for them, inspecting all the contents of a home at their leisure”).
In Sutterfield, the Seventh Circuit held that the officers were entitled to qualified
immunity for their search of a “locked compact disc case” during their protective sweep of the
home. See Sutterfield, 751 F.3d at 572. It could have contained a gun. Given the broad
application of the community caretaking doctrine under Wisconsin state law, and given
Sutterfield’s “threat to harm herself and her physician’s report that she likely possessed a gun,
police had reason to look for any firearm that Sutterfield might use to harm herself.” Id. at 577–
78. But the Court of Appeals observed that a “more intrusive” search – meaning a search beyond
a “limited, protective sweep” of “places within the home that another person might be found” –
would require an additional justification. Id. at 577.
The police officers in this case present no similar facts to justify searching drawers in
Cardenas’s home. They were looking for a person, first and foremost, and that search did not
require a search through small spaces. So the officers are not entitled to qualified immunity for
the scope and duration of the search.
Viewing the evidence in the light most favorable to Plaintiffs, as the Court must do at this
stage, there is a factual dispute about the scope and duration of the search. There is a jury
question about whether the police spent too long in the home, and looked in too many places.

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There is a factual dispute about whether the search was reasonable, so the claim needs to go to
trial.
Defendants’ motion for summary judgment on Count II is denied.
III.

Officer Bubalo
Defendants separately move to dismiss all claims against Officer Bubalo. They argue

that Plaintiffs haven’t presented evidence that Officer Bubalo entered or searched Plaintiffs’
home. See Defs.’ Mem. in Supp. of Mtn. for Summ. J., at 14–15 (Dckt. No. 109).
Officer Bubalo testified that he responded to the call for backup, but never entered the
home. See Pls.’ Resp. to Defs.’ Statement of Facts, at ¶ 25 (Dckt. No. 125). He said he pulled
up outside the home, but by the time he arrived, the other officers were leaving the home. Id. at
¶¶ 25–26. So he stayed in his squad car. Id.
There is no direct evidence that Officer Bubalo entered the home. At deposition,
Gonzalez did not testify that Officer Bubalo entered his home. See Gonzalez Dep. (Dckt. No.
124-11). His declaration does not say that Officer Bubalo entered his home, either. See
Gonzalez Dec. (Dckt. No. 124-19). The omission is telling. The declaration does identify – by
name – five specific officers who entered the home, but Gonzalez said no such thing about
Officer Bubalo. Gonzalez viewed screen shots from the video depositions, too, but he could not
identify Officer Bubalo as one of the officers who he saw in his home. See Pls.’ Resp. to Defs.’
Statement of Facts, at ¶ 30 (Dckt. No. 125) (identifying five officers who entered his home, but
not Officer Bubalo).
Plaintiffs respond that there is circumstantial evidence that Officer Bubalo entered the
home because Gonzalez testified that “as many as ten officers entered his home.” See Pls.’ Resp.
to Defs.’ Mtn. for Summ. J., at 13 (Dckt. No. 126). But testimony about the number of officers

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is not the same thing as evidence about the identities of those officers. The question is who, not
how many. The number of officers cannot support an inference about who those officers were.
Plaintiffs point to the City’s records that list Bubalo as one of the officers who responded
to the call. See Defs.’ Resp. to Pls.’ Statement of Additional Facts, at ¶¶ 4, 15 (Dckt. No. 133);
10/1/15 Event Query Report (Dckt. No. 124-7). In the “Unit Summary” portion of the report,
Unit 1634 (which the parties confirm was Bubalo’s beat number) is listed as dispatched. Id.
(Dckt. No. 124-7, at 3 of 3). But nothing in that report indicates that Officer Bubalo entered the
home. Information about an officer responding to a call does not reveal how the officer
responded, or where he went.
The Court grants summary judgment to Officer Bubalo.
IV.

Judicial Estoppel
The claims by Gonzalez fail for an independent reason. Gonzalez has surrendered the

privilege of bringing a claim at all.
Gonzalez, it turns out, filed for bankruptcy in 2017, and he had to list his assets as part of
that bankruptcy filing. The bankruptcy petition required him to disclose – under penalty of
perjury – any potential claims. A debtor must disclose potential claims because they have
potential value, and any assets of the debtor belong to the estate and ultimately go to creditors.
But Gonzalez never mentioned a potential claim against the police officers when he filed
for bankruptcy. That is, in his bankruptcy petition, he didn’t say anything about the police
entering and searching his home in 2015. He didn’t mention emotional trauma, either. He kept
it to himself. By keeping quiet, Gonzalez failed to disclose a potential asset. He did not tell the
full story to the bankruptcy court.

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After filing for bankruptcy, Gonzalez filed this lawsuit. During discovery, Defendants
learned about the bankruptcy filing. They later moved for summary judgment based on judicial
estoppel. But the record contained gaps. Plaintiffs’ counsel instructed Gonzalez not to answer
questions about his bankruptcy at deposition.
This Court wanted to get to the bottom of things, so it set an evidentiary hearing to gather
the facts and hear the full story. This Court did so because the Seventh Circuit has encouraged
evidentiary hearings in similar circumstances involving judicial estoppel. See, e.g., Matthews v.
Potter, 316 F. App’x 518, 523 (7th Cir. 2009) (“[T]he court must make a factual determination,
by evidentiary hearing if necessary, regarding the nature and extent of the disclosures Matthews
made to the Chapter 7 trustee at the meeting of creditors.”); Pruitt v. Quality Labor Servs., LLC,
2018 WL 5808461, at *2 (N.D. Ill. 2018) (holding an evidentiary hearing and then deciding
whether defendant “prove[d] by a preponderance of the evidence that the plaintiff-debtor
intentionally concealed the claim”).
Plaintiffs’ counsel fought the hearing tooth and nail, filing motion after motion, resisting
every step of the way. The eruption of objections was nothing short of vesuvian. But the
evidentiary hearing went forward.
In the end, after hearing the testimony and reviewing the full record, one conclusion is
inescapable. Gonzalez failed to disclose a potential claim about what happened at his home, and
the failure to disclose was not an oversight. Gonzalez knew that he had a potential claim, and he
knew that it had value. The Court finds that Gonzalez intentionally misrepresented his financial
situation to the bankruptcy court by falsely stating that he had no potential claims.

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As a result, Gonzalez has lost the privilege of bringing his claims here and now. After
representing to the bankruptcy court that he had no potential claims of any value, Gonzalez
cannot change his tune and tell a jury that he has a claim of value.
A.

The Backstory
1.

The Bankruptcy Petition

This case involves an entry into Gonzalez’s home on October 1, 2015. About 15 months
later, on January 12, 2017, Gonzalez filed a chapter 7 bankruptcy petition. See In re Juan
Gonzalez, No. 17-bk-00895 (Bankr. N.D. Ill.). When identifying his assets in his bankruptcy
petition, he didn’t mention anything about a potential claim against the police.
Bankruptcy petitions require debtors to disclose their assets, because the filing of a
bankruptcy petition means that the assets become the property of the estate. See 11 U.S.C.
§ 541(a) (providing that an estate includes “all legal or equitable interests of the debtor in
property as of the commencement of the case”); 1 Robert E. Ginsberg & Robert D. Martin,
Ginsberg & Martin on Bankruptcy § 5.01 (Hon. Catherine J. Furay ed., 5th ed. Supp. 2021)
(“The filing of a voluntary petition . . . in a Chapter 7, 11, 12, or 13 case immediately creates a
bankruptcy estate. . . . The estate generally consists of property and interests in property that the
debtor had at the moment of the filing of the debtor’s bankruptcy petition.”); 5 Collier on
Bankruptcy § 541.01 (Richard Levin & Harry J. Sommer eds., 16th ed. 2021) (“Congress’s intent
to define property of the estate in the broadest possible sense is evident from the language of the
statute . . . . It would be hard to imagine language that would be more encompassing.”); In re
Carousel Int’l Corp., 89 F.3d 359, 362 (7th Cir. 1996) (“[Section] 541 defines ‘property of the
estate’ broadly, to include ‘all legal or equitable interests of the debtor in property as of the

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commencement of the case.’ Indeed, we have held that ‘every conceivable interest of the debtor,
future, nonpossessory, contingent, speculative, and derivative, is within the reach of § 541.’”)
(citations omitted).
One type of asset that flows to the estate is a right to bring a claim. “The debtor’s right to
sue for any reason is a property interest that almost inevitably becomes property of the estate. . . .
The trustee may recover in contract or in tort for injuries to both the debtor’s person and
property, because these rights of action become estate property.” See 1 Robert E. Ginsberg &
Robert D. Martin, Ginsberg & Martin on Bankruptcy § 5.01 (Hon. Catherine J. Furay ed., 5th ed.
Supp. 2021); 5 Collier on Bankruptcy § 541.07 (Richard Levin & Harry J. Sommer eds., 16th ed.
2021) (“The estate created pursuant to section 541(a) includes causes of action belonging to the
debtor at the time the case is commenced. . . . For instance, upon filing a bankruptcy petition,
the debtor’s entire interest in a prepetition personal injury claim becomes property of the estate
and may not be pursued by the debtor.”); Juza v. Wells Fargo Bank, N.A., 794 F. App’x 529, 535
(7th Cir. 2020) (“A legal claim is an asset that must be disclosed during bankruptcy so that it can
be administered along with a debtor’s other assets.”); Cannon-Stokes v. Potter, 453 F.3d 446,
448 (7th Cir. 2006) (“[A]s a technical matter the estate in bankruptcy, not the debtor, owns all
pre-bankruptcy claims . . . .”).
Debtors must disclose all of their assets in bankruptcy schedules. Here, Gonzalez’s
bankruptcy petition included “Schedule A/B: Property.” See Chapter 7 Petition, at 10 of 54
(Dckt. No. 172). He submitted the schedule as part of his original bankruptcy petition on
January 12, 2017. Id.; see also Chapter 7 Petition, at 10 of 54, in In re Juan Gonzalez, 17-bk00895 (Bankr. N.D. Ill.) (Dckt. No. 1 in the bankruptcy docket). He filed an amended Schedule

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A/B on January 18, 2017, and amended it again on March 22, 2017. See In re Juan Gonzalez,
17-bk-00895 (Bankr. N.D. Ill.) (Dckt. Nos. 10 & 17 in the bankruptcy docket).
That schedule required Gonzalez to disclose all of his assets. It began with a simple
instruction: “Be as complete and accurate as possible.” See Chapter 7 Petition, at 10 of 54
(Dckt. No. 172).
Part 4 of that schedule required Gonzalez to “Describe Your Financial Assets.” Id. at 12
of 54. It began by asking a simple question: “Do you own or have any legal or equitable interest
in any of the following?” Id. The schedule then asked questions about specific types of assets,
such as cash, stock, retirement accounts, annuities, patents, licenses, money owed, and so on. Id.
The list covered the waterfront, and conveyed the unmistakable message that a debtor must
disclose anything and everything of value.
One questions asked about potential claims. Question 33 required Gonzalez to disclose if
he had any “[c]laims against third parties, whether or not you have filed a lawsuit or made a
demand for payment.” Id. at 14 of 54. The form gave examples, too: “Examples: Accidents,
employment disputes, insurance claims, or rights to sue.” Id. (emphasis in original).
Gonzalez checked a box, and gave a simple answer: “No.” Id. By giving that answer,
Gonzalez represented to the bankruptcy court that he had no claims or potential claims. The
question made clear that it applied “whether or not you have filed a lawsuit.” Id. (emphasis
added). It covered rights “to sue.” Id.
The very next question covered the point again, making sure that the debtor disclosed
anything and everything. The form asked about any “[o]ther contingent and unliquidated claims
of every nature.” Id. Once again, Gonzalez responded “No.” Id.

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Another question asked about “[o]ther amounts someone owes you.” Id. Examples
included unpaid wages, disability payments, sick pay, vacation pay, unpaid loans, and so on. Id.
Once again, Gonzalez answered “No.” Id.
To remove any doubt, the section of the schedule included a catch-all provision. Id. The
form asked Gonzalez if he had “[a]ny financial assets you did not already list.” Id. Once again,
he answered “No.” Id.
Gonzalez signed the petition under penalty of perjury, and represented that it contained
truthful information. “I have examined this petition, and I declare under penalty of perjury that
the information provided is true and correct.” Id. at 6 of 54. His signature appeared right below
a warning about providing false information: “I understand making a false statement, concealing
property, or obtaining money or property by fraud in connection with a bankruptcy case can
result in fines up to $250,000, or imprisonment for up to 20 years, or both.” Id.; see also Chapter
7 Petition (Dckt. No. 172-1, at 1 of 7) (the handwritten signature).
Gonzalez knew that his bankruptcy petition needed to be truthful, accurate, and complete.
See 3/3/21 Tr., at 95:24 – 96:1 (Dckt. No. 201). He also knew that he needed to disclose all of
his assets. Id. at 96:2-4.
Gonzalez did not go solo when he filed the petition. He had the assistance of counsel, an
attorney from Illinois Advocates (a firm that handles legal issues for union members). See
Chapter 7 Petition, at 47–50 of 54 (Dckt. No. 172); see also Gonzalez Dep., at 128:22 – 129:10
(Dckt. No. 124-11); 3/3/21 Tr., at 69:24 – 70:1 (Dckt. No. 201). The attorney signed the petition
on the following page. See Chapter 7 Petition, at 7 of 54.
The bankruptcy proceeding didn’t last long. Gonzalez met with the bankruptcy trustee in
March 2017. His debts were discharged in April 2017. The bankruptcy case closed on April 20,

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2017. See generally In re Juan Gonzalez, 17-bk-00895 (Bankr. N.D. Ill.); see also Statement of
Juan Gonzalez, at ¶ 3 (Dckt. No. 153).
2.

The Deposition

Gonzalez filed this lawsuit in September 2017. That is, he filed suit eight months after
filing for bankruptcy (in January 2017), and almost two years after the police entered his home
(in October 2015). See Cplt. (Dckt. No. 1).
During discovery, defense counsel learned that Gonzalez had filed for bankruptcy. See
3/3/21 Tr., at 74:24 – 75:20 (Dckt. No. 201). So defense counsel asked Gonzalez about it at his
deposition.
Plaintiffs’ counsel wouldn’t let her client answer. “I’m going to object and not allow him
to answer any more questions about his bankruptcy.” See Gonzalez Dep., at 113:21-22 (Dckt.
No. 124-11). Plaintiffs’ counsel added that she was “going to be seeking a protective order from
the Court, and so I’m allowed under the federal rules to instruct him not to answer any
questions.” Id. at 115:6-8. When asked, counsel for Gonzalez would not give the basis for
seeking a protective order: “I don’t have to answer those questions.”11 Id. at 115:11-12.
Gonzalez’s counsel then instructed her client not to answer a series of questions about his
bankruptcy filing. Id. at 113:21 – 121:7. The unanswered questions included whether Gonzalez
had ever spoken to his bankruptcy attorney about his assets, and whether his bankruptcy
schedules disclosed his claim against the police. Id. at 118:2 – 119:8. Counsel would not let
Gonzalez testify about why he failed to disclose his claim in his bankruptcy schedule:

In a later filing, Plaintiffs’ counsel asserted that any questions about Gonzalez’s non-disclosure “may
be subject to plaintiff’s privilege against self-incrimination.” See Pls.’ Resp., at ¶ 9 (Dckt. No. 74).
11

Before the evidentiary hearing in 2021, Plaintiffs’ counsel called the questioning by defense counsel
“aggressive.” See Statement of Plaintiffs’ Attorney, at ¶ 9 (Dckt. No. 154). It was not aggressive.

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Q:

Why did you not list this lawsuit or potential lawsuit on your
schedules that you filed in your bankruptcy case?

Plaintiffs’ Counsel: Instruct Mr. Gonzalez not to answer the question for
the same reasons that we have already stated.
Q:

Are you taking your attorney’s advice?

A:

Yes.
*

Q:

*

*

As you sit here today, what is the value that you place on this
lawsuit? How much do you think the lawsuit’s worth?

Plaintiffs’ Counsel: Objection; instructing him not to answer the question.
Q:

On what basis?

Plaintiffs’ Counsel: Same objections.
Q:

Are you taking your attorney’s advice?

A:

Yes.

Id. at 120:10 – 121:7; but see Redwood v. Dobson, 476 F.3d 462, 467–68 (7th Cir. 2007)
(“Counsel for the witness may halt the deposition and apply for a protective order, see Rule
30(d)(4), but must not instruct the witness to remain silent.”).
Other parts of the deposition did shed some light. Gonzalez testified that he called the
Independent Police Review Authority (“IPRA”) – an agency that investigates police misconduct
– on the same day that the police searched his home. See Gonzalez Dep., at 74:2 – 76:11 (Dckt.
No. 124-11). He called to “complain about the police officer’s behavior.” Id. at 74:14-15. He
testified:
Q:

Sure. But fair to say that the day of the incident you called IPRA;
right?

A:

Yes.

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Q:

And so you thought that something – you had been wronged the
day of the incident; right?

A:

Yes.

Id. at 105:10-15. In fact, Gonzalez wasn’t sure who he called first – the IPRA, or his
stepdaughter Stephanie Cardenas (even though the police were checking on her well-being). Id.
at 74:5-6.
Gonzalez also testified about contacting an attorney. He reached out to lawyers about the
conduct of the police within months of the incident in October 2015. He testified:
Q:

Okay. So just to get back to my original question, when was the
first time that you contacted an attorney regarding this lawsuit?

A:

Sometime after, but I don’t know the time frame.

Q:

Okay. Was it a year after?

A:

No. Months.

Q:

It was – it was less than a year after?

A:

Yes.

Id. at 106:18 – 107:2 (emphasis added).
Specifically, Gonzalez explained that he had reached out to Illinois Advocates, the same
firm that eventually handled his bankruptcy filing in January 2017. Id. at 107:13 – 108:22,
113:6-14. But they declined to pursue the claim against the police.
So Gonzalez searched for new attorneys, and reached out to Irene Dymkar, his current
counsel. Id. at 107:13 – 108:22; see also Statement of Juan Gonzalez, at ¶ 5 (Dckt. No. 168) (“I
had a complaint about how the police treated me and I discussed it with Illinois Advocates, a
firm that also represented me in the bankruptcy. They decided not to proceed with a case. I

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contacted other attorneys, including Ms. Dymkar, and she was willing to investigate the
matter.”).
3.

The Amended Bankruptcy Petition

After the deposition in June 2018, Gonzalez’s counsel did not file a motion for a
protective order. Instead, the City filed a motion to compel, asking for an order requiring
Gonzalez to sit for deposition a second time and testify about his bankruptcy. See 6/21/18 Mtn.
(Dckt. No. 68).
While that motion was pending, Gonzalez went back to bankruptcy court. On July 17,
2018, Gonzalez filed a motion in bankruptcy court to reopen his bankruptcy. See 3/3/21 Tr., at
79:22 – 80:22 (Dckt. No. 201); In re Juan Gonzalez, 17-bk-00895 (Bankr. N.D. Ill.) (Dckt. No.
22 in the bankruptcy docket).
Two months after the deposition, on August 22, 2018, Gonzalez filed an amended
bankruptcy petition. For the first time, he disclosed the existence of this litigation against the
police officers.
He disclosed the lawsuit in response to Question No. 30, which asked about “[o]ther
amounts someone owes you.” He checked the box “Yes,” and added the following:
Unknown unliquidated contingent claim, approximately $0-$45,000 –
Debtor’s interest is 50% of settlement, minus attorneys’ fees, set at 40% of
the total settlement amount, and reimbursement for costs.
Federal Case No. 17 C 7080, filed 09/29/17.
See Am. Bankruptcy Petition (Dckt. No. 157-2).12 Gonzalez later explained that Plaintiffs’
counsel selected that number. See 3/3/21 Tr., at 106:9 – 108:17 (Dckt. No. 201).

Gonzalez is entitled to only “50%” of the recovery because of his divorce. The claim was a marital
asset, and his wife was entitled to the other 50%. See 3/3/21 Tr., at 77:2-21 (Dckt. No. 201); Gonzalez
Dep., at 112:16 – 113:18 (Dckt. No. 124-11). The fact that the claim was a marital asset underscores that
it had value, and that Gonzalez should have disclosed it in his bankruptcy petition on day one.
12

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Notice that Gonzalez assigned a specific monetary value to his claim against the police
officers. The exact amount was “[u]nknown,” but Gonzalez estimated that his claim was worth
up to $45,000. Id. So, Gonzalez admitted that his claim had a potential value of tens of
thousands of dollars.
A few weeks later, Judge Castillo (this Court’s predecessor, before reassignment)
presided over a hearing and denied the motion to compel without prejudice. See 10/2/18 Order
(Dckt. No. 93). Judge Castillo concluded that the issue was moot in light of the filing of the
amended bankruptcy petition. See 10/2/18 Tr., at 4:5-9 (Dckt. No. 114) (“My knowledge, which
is not extensive of bankruptcy law, is he had to file a pretty extensive schedule which would
justify why he went into bankruptcy. So my question to the defendants is isn’t that moot at this
point?”).
Defense counsel responded: “the issue was that he did not include this case as part of the
assets originally is my understanding, and now that we have been informed that he has, I don’t
think we would need to pursue any further at this time.” Id. at 4:10-14.
Counsel’s response missed the boat. The issue was the integrity of a judicial proceeding.
A false statement to a court isn’t necessarily cured by giving a truthful statement after the fact,
especially when someone else flags the falsity of the statement. There are institutional interests
at stake, above and beyond the need for an accurate bankruptcy proceeding. But Judge Castillo
followed defense counsel’s lead, and denied the motion as moot. Id. at 4:15-17.
4.

The Testimony before the Bankruptcy Trustee

On January 4, 2019, Gonzalez testified under oath before the bankruptcy trustee about his
failure to disclose the incident involving the police. See 1/4/19 Bankr. Tr. (Dckt. No. 180); see

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also 3/3/21 Tr., at 80:24 – 81:1 (Dckt. No. 201); Statement of Juan Gonzalez, at ¶¶ 5–6 (Dckt.
No. 153).
In the hearing with the trustee, Gonzalez’s counsel acknowledged that he should have
disclosed the incident involving the police in his original bankruptcy petition. The failure to do
so was merely an “oversight”:
Trustee:

And why don’t you for the record, just give us the
circumstances regarding a motion to reopen, briefly?

Counsel:

Yes. We filed a motion to reopen because it came to my
attention that a civil rights case had been filed where the
circumstances for the case actually preceded the filing of
the bankruptcy. And so –

Trustee:

So you’re saying the civil rights action was property in the
bankruptcy of state [sic] and should have been listed on the
schedule but was not?

Counsel:

That is correct. Yes.

Trustee:

Okay. And do you know why that occurred, or?

Counsel:

To my understanding, I believe it was just an oversight on
Mr. Gonzalez’s part. I don’t believe that he realized that a
civil rights proceeding fell under the terms of a lawsuit,
perhaps. I can’t speak for Mr. Gonzalez on that. But I
believe that would [be] what happened.

See 1/4/19 Bankr. Tr., at 00:57 to 01:59 (Dckt. No. 180).
The trustee then posed a series of questions to Gonzalez, who testified under oath.
Gonzalez confirmed that the incident happened in 2015, long before he filed for bankruptcy in
2017. Id. at 01:59 to 02:36. He also admitted that he contacted Illinois Advocates “soon after.”
Id. at 02:24. “They took the case in the beginning, and then they dropped it, and then I had to
seek another attorney office.” Id. at 02:48-55; id. at 3:25-46 (“[T]he incident happened, then I
saw the Illinois Advocates’ attorney, and then it got dropped. Then I went to look for another

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attorney who started to look into it, and then it got filed after the bankruptcy got discharged in
2017. It got filed after that.”).13
Gonzalez explained how he searched for other attorneys after Illinois Advocates declined
to take the case. “I was just looking online, talking to people, and then I found someone.” Id. at
05:48-53. It “was just a bunch of telephone calls.” Id. at 05:56-59.
The trustee then examined Gonzalez about the incident with the police, presumably to
figure out if it was worth pursuing. Id. at 06:05 – 10:10. The trustee elicited admissions about
the case. First, the police did not break down his door. Id. at 07:09-23. Second, the police did
not make any physical contact with Gonzalez. Id. at 07:52 – 08:37. Third, the police did not
physically restrain him – they simply told him to stand there. Id. at 08:37 – 09:13. And fourth,
the police did not destroy any property. Id. at 09:37-57.
The trustee ended by asking Gonzalez if there was anything else that he wanted to tell the
trustee. Gonzalez said no. Id. at 09:59 – 10:10.
Gonzalez made three omissions. First, in his deposition, Gonzalez testified that a police
officer pointed a gun at his face for between 5 and 15 seconds. See Gonzalez Dep., at 42:23 –
45:15 (Dckt. No. 124-11). Gonzalez made the same point in the evidentiary hearing before this
Court in 2021. See 3/3/21 Tr., at 54:1-10 (Dckt. No. 201) (testifying that officers, plural, pointed
a gun at him). In the hearing with the trustee, Gonzalez testified that guns were drawn, but he

13

Gonzalez told Illinois Advocates about the incident with the police shortly after it happened. And
later, Illinois Advocates filed a bankruptcy petition on his behalf. So the firm that handled his bankruptcy
is the same firm that heard about the incident on the day that it happened. See 3/3/21 Tr., at 72:14-19
(Dckt. No. 201); 1/4/19 Bankr. Tr., at 02:48-55, 03:25-46 (Dckt. No. 180). Illinois Advocates knew about
the incident, but then filed a bankruptcy petition that failed to disclose the incident. (The firm was the
same, but the attorneys were different. See 3/3/21 Tr., at 42:8-13, 75:15-18, 93:5-14, 101:7-13,
103:1-15.)

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never mentioned that more than one officer pointed a gun at him. Id. at 50:10 – 59:4; see also
see 1/4/19 Bankr. Tr. (Dckt. No. 180).
Second, Gonzalez didn’t mention anything about being afraid, or disclose any emotional
trauma. See 1/4/19 Bankr. Tr. (Dckt. No. 180); see also 3/3/21 Tr., at 62:9 – 64:1 (Dckt. No.
201).
Third, Gonzalez did not tell the bankruptcy trustee about a settlement conference that he
apparently had with Judge Castillo in April 2018, meaning nine months earlier. (This Court first
learned about it when Gonzalez filed a declaration before the evidentiary hearing in March 2021,
and summarized what Judge Castillo said during that settlement conference.) On April 18, 2018,
Gonzalez “heard Judge Ruben Castillo give his opinion to the parties that the lawsuit was worth
$0 – $80,000.” See Statement of Juan Gonzalez, at ¶ 8 (Dckt. No. 168).14
So, according to Gonzalez, Judge Castillo told him that his case might be worth $80,000.
But Gonzalez did not mention that fact during his hearing with the bankruptcy trustee, when the
trustee was evaluating whether the claim had any value.
The trustee later decided not to pursue the claim. See 3/3/21 Tr., at 81:20 – 82:14 (Dckt.
No. 201). The bankruptcy estate closed for the second time on March 4, 2019. See In re Juan
Gonzalez, 17-bk-00895 (Bankr. N.D. Ill.); Statement of Juan Gonzalez, at ¶ 7 (Dckt. No. 153).

Plaintiffs’ counsel objected at the evidentiary hearing when defense counsel asked about comments by
Judge Castillo at the settlement conference. See 3/3/21 Tr., at 46:15 – 47:23 (Dckt. No. 201). But
Gonzalez himself put it at issue. Gonzalez submitted a declaration – the day before the evidentiary
hearing – that summarized what happened at the settlement conference with Judge Castillo, including
Judge Castillo’s estimate of the value of the case. See Statement of Juan Gonzalez, at ¶ 8 (Dckt. No.
168). So Plaintiff summarized the settlement conference in his declaration on March 2, 2021, and then
objected when defense counsel asked about it on March 3, 2021.
14

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5.

The Filings Before the Evidentiary Hearing

But the issue did not go away. The City later filed for summary judgment, and raised the
issue of judicial estoppel. The City argued that Gonzalez had failed to disclose the potential
claims against the police officers in his original bankruptcy petition. According to the City, the
failure to tell the full story and give a truthful statement in his bankruptcy petition means that he
cannot bring a claim against the officers.
This Court noticed the holes in the evidentiary record, in light of the (improper)
instructions not to answer by Plaintiffs’ counsel at his deposition. Important questions went
unanswered. So this Court sua sponte ordered an evidentiary hearing. See 2/11/21 Order (Dckt.
No. 147); 2/11/21 Tr. (Dckt. No. 156). The Court ordered Gonzalez to testify under oath.
Plaintiffs’ counsel responded by unleashing what can only be described as a torrential
downpour – or perhaps artillery barrage – of objections. Plaintiffs filed motion after motion,
attempting to derail this Court’s plan to hear the story from Gonzalez himself. Objection after
objection rained down on this Court.
Plaintiffs’ counsel filed a motion for reconsideration, asking this Court to rethink the
need for an evidentiary hearing. See Mtn. (Dckt. No. 149). Plaintiffs’ counsel also filed a
second motion with a large collection of objections to the hearing. See Mtn. (Dckt. No. 148).
Plaintiffs’ counsel then filed a third motion, arguing that there was no need for a hearing because
this Court should deny Defendants’ motion for summary judgment. See Mtn. (Dckt. No. 150).
Plaintiffs’ counsel then added to the pile, filing a fourth motion to vacate the Order setting the
hearing. See Mtn. (Dckt. No. 152).
After filing four motions objecting to the hearing, Plaintiffs’ counsel filed a statement,
reiterating for good measure that counsel objected to the hearing. See Statement of Pls.’

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Attorney (Dckt. No. 154). And then, Plaintiffs’ counsel filed another statement, reminding this
Court that Plaintiffs “continue to strongly object to the hearing for all the reasons set forth in
their motions. Docs. 148, 149, 150, 152.” See Statement Regarding Witnesses and Evidence for
Hearing of March 3, 2021, at ¶ 3 (Dckt. No. 158). (This Court had figured that out already.)
The evidentiary hearing took place.
Before the hearing, this Court explained the reasons for the hearing in a series of written
Orders. See 2/11/21 Order (Dckt. No. 147); 3/1/21 Order (Dckt. No. 162); 3/1/21 Order (Dckt.
No. 163); 3/1/21 Order (Dckt. No. 164); 3/1/21 Order (Dckt. No. 165); 3/1/21 Order (Dckt. No.
166). For example: “The Court wants to hear an explanation, from Plaintiff Gonzalez directly,
about why he did not list the claim as an asset when he filed for bankruptcy. The record on that
issue is incomplete because Plaintiffs’ counsel instructed him not to answer those questions at
deposition, in violation of the Federal Rules.” See 3/1/21 Order (Dckt. No. 162).
A few weeks before the hearing, this Court ordered Gonzalez to disclose the amount of
damages that he is seeking in this litigation. See 2/11/21 Order (Dckt. No. 147). The amount of
damages sheds light on whether Gonzalez failed to disclose the potential claim intentionally.
Damages must stem from an injury. The greater the damages, the greater the injury. And
the greater the injury, the less likely that a plaintiff simply forgot to mention it. Forgetting to tell
the bankruptcy trustee about a claim that is worth $10 is understandable. Overlooking a claim
that is worth $50,000 or more is less likely.
So this Court ordered Gonzalez to pin it down, and peg his claim to a number. Id. That
directive was not particularly burdensome. The Federal Rules require plaintiffs to give a
“computation of each category of damages claimed by the disclosing party” as part of initial
disclosures, at the outset of the case. See Fed. R. Civ. P. 26(a)(1)(A)(iii). Every defense counsel

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worth his or her salt serves written discovery about damages, too. See 3/1/21 Order (Dckt. No.
164) (“Discovery about the amount of damages that a plaintiff is seeking is a bread-and-butter
part of litigation.”).
And here, the question was especially easy. Gonzalez estimated in his amended
bankruptcy petition that the claim was worth “$0-$45,000.” See Am. Bankruptcy Petition (Dckt.
No. 157-2). That disclosure took place on August 22, 2018, two and a half years before the
evidentiary hearing.
So, this Court was curious to know if Gonzalez’s estimate of the value of the claim had
changed in the intervening years. If Gonzalez sought pie-in-the-sky damages – after telling the
bankruptcy trustee that the claim was worth $0-$45,000 – it might support an inference that
Gonzalez had low-balled the trustee. It might show intent to deceive.
Gonzalez refused. Plaintiffs’ counsel took the position that it would be impossible to put
a number on the amount of damages: “So I’m not sure it’s possible to do what you’re asking us
to do, Your Honor.” See 2/11/21 Tr., at 20:24-25 (Dckt. No. 156); id. at 22:11-12 (“Yeah, I – I
don’t know if that’s possible, Your Honor.”).
In fact, Plaintiffs’ counsel represented that she would never tell clients what they could
expect in damages. “I never tell clients, you know, you could expect X amount of dollars here or
Y amount of dollars, because that – I think that’s irresponsible for an attorney.” Id. at 20:21-23
(emphasis added).
Plaintiffs’ counsel filed a motion for reconsideration, taking the view that Gonzalez had
no duty to quantify his damages for emotional distress. See Mtn. (Dckt. No. 149). Gonzalez
took the position that the obligation to disclose a “computation” of damages does not apply to
damages for emotional distress. Id. at 2–3. (As an aside, the plain language of Rule 26 includes

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no such carve-out. Instead of carving exceptions, it embraces everything, covering “each
category of damages.” See Fed. R. Civ. P. 26(a)(1)(A)(iii) (emphasis added). And in any event,
this Court can order a party to disclose something, even if it is not strictly required by Rule
26(a).)
According to Plaintiffs’ counsel, experienced attorneys “would not and could not” give
an exact figure for damages: “Even attorneys, such as plaintiffs’ attorney, who have been
practicing law for a number of years, would not and could not give an exact figure for emotional
damages or punitive damages.” See Mtn., at 4 (Dckt. No. 149).
But the filing acknowledged that the number could be big. “Plaintiffs’ counsel are aware
of verdicts in cases involving only emotional damages that have been in the millions of dollars.”
Id. So Gonzalez wanted to throw the claim to the jury, and see what happens, without answering
this Court’s questions about the value of his claim. Id. (“[P]laintiff does not have such a figure
in mind, but rather wants to tell the jury what happened to him, and leave it to the jury to
determine compensation, both compensatory and punitive.”).
Plaintiffs’ counsel added that Gonzalez did not know that he had a potential claim when
he met with the bankruptcy trustee in 2017. “At the point when plaintiff Juan Gonzalez had his
first meeting with the trustee in bankruptcy in early 2017, there was no lawsuit. He had not even
been told by counsel that he had a viable claim.” Id.; see also id. (“Mr. Gonzalez would not been
[sic] able to put a figure on an asset that he did not even know was an asset.”).
Pinning down the amount of damages that he is seeking is “something he cannot do.” Id.
at 3 (bold omitted). The “honest answer” was that Gonzalez “does not know the value of the
lawsuit.” Id. at 4. In a later filing, Gonzalez submitted a declaration, repeating that he was “not

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able to give an exact figure on what my emotional damages are worth.” See Statement of Juan
Gonzalez, at ¶ 9 (Dckt. No. 153).
This Court denied the motion for reconsideration, and issued an Order explaining its
reasons. See 3/1/21 Order (Dckt. No. 164). For the second time, this Court ordered Gonzalez to
file a statement and disclose the amount of damages that he is seeking in this litigation. Id.
For the second time, Gonzalez refused. Instead of complying and giving a number,
Plaintiffs’ counsel filed a supplemental declaration from Gonzalez. See Statement of Juan
Gonzalez (Dckt. No. 168). Gonzalez professed an inability to quantify the value of his claim.
“I do not mean at all to be disrespectful to the Court, but the Court is asking me to do
something I am not able to do.” Id. at ¶ 9. “I am not able to give an exact figure on what my
emotional damages are worth.” Id. He simply wanted to get to a jury: “I want to tell the jury
what happened to me and have the jury determine what kind and what amount of damages to
award me.” Id.
So, even though he told the bankruptcy court what his claim was worth in 2018 (i.e., $0
to $45,000), Gonzalez refused to tell this Court what his claim was worth.
6.

The Evidentiary Hearing

The next day, this Court presided over an evidentiary hearing. See 3/3/21 Tr. (Dckt. No.
201); 3/3/21 Order (Dckt. No. 171). The Court began by reiterating the reasons for the hearing.
See 3/3/21 Tr., at 6:10 – 8:5; see also id. at 7:12-15 (“There are gaps in the record about why
plaintiff Gonzalez did not disclose the potential claim in his bankruptcy petition. So the purpose
of today’s hearing is to fill in those gaps and complete the record.”). More objections followed.
Id. at 20:21 – 21:7.

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Before Gonzalez testified, this Court pinned down the chronology. Shortly before the
hearing, this Court issued a minute order that summarized the key dates, with citations. See
3/3/21 Order (Dckt. No. 170) (“To speed things along and avoid confusion, counsel should be
prepared to stipulate to the basic chronology (and offer any additions or corrections) at the outset
of today’s hearing. As the Court understands it, the events unfolded as follows.”).
For example, the search by the police took place on October 1, 2015. Id. Gonzalez filed
for bankruptcy on January 12, 2017. Id. Gonzalez filed this federal lawsuit on September 29,
2017. Id. And so on. At the beginning of the hearing, counsel stipulated to the chronology, with
immaterial clarifications. See 3/3/21 Tr., at 8:7 – 14:6 (Dckt. No. 201). So, for any interested
reader, that minute order provides a useful guidepost for the chronology. See 3/3/21 Order
(Dckt. No. 170).
During his testimony, Gonzalez cemented a few points, and filled in some gaps. The
hearing began with Gonzalez describing the events on the day of the search by the police
officers. See 3/3/21 Tr., at 23:13 – 25:14 (Dckt. No. 201).
Gonzalez testified about the impact that the incident had on him, including his emotional
state. For a period of time afterwards, he didn’t feel safe in his own home. Id. at 59:23-25. And
to this day, he “fear[s] the police.” Id. at 60:7. “I do have a fear, a phobia, right now that I’m
scared to be anywhere near the vicinity of them.” Id. at 60:9-10. He had trouble sleeping, too.
Id. at 60:15-17.
Gonzalez testified about how he responded after the police left his home. That very day,
meaning the day of the entry and search, he called the Independent Police Review Authority and
made a complaint. Id. at 26:22-25; id. at 93:7 (“I called IPRA the same day.”).

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Not long after, Gonzalez started contacting lawyers. Gonzalez reached out to Illinois
Advocates – the law firm that eventually handled his bankruptcy filing – and told them what had
happened. Id. at 27:1-16. He had a “[c]onsultation about the matter of my rights in this matter.”
Id. at 27:4.
That consultation with Illinois Advocates took place in 2015. Id. at 27:8-10. He later
clarified that “Illinois Advocates was informed a couple days later,” meaning a few days after the
incident. Id. at 93:7-8; see also id. at 101:22 – 102:24 (confirming that he contacted Illinois
Advocates “days,” not “months,” after the incident).
Gonzalez testified that Illinois Advocates “did a certain amount of looking into the case,”
and obtained records. Id. at 72:2 – 73:6. But Illinois Advocates then told Gonzalez “that they
were not going to proceed with the claim.” Id. Illinois Advocates “heard me out, and then they
dropped the case.” Id. at 29:23-24.
At that point, Gonzalez searched for more lawyers. Gonzalez explained that he was
looking for counsel about his “legal matter”:
Q:

Okay. After you contacted Illinois Advocates, did you look for
another attorney to potentially file a lawsuit on your behalf?

A:

I was looking into consultation of my matter, my legal matter.

Id. at 27:17-21. He wanted to talk with a lawyer about his “rights under this incident that
happened at October of 2015.” Id. at 28:3-4.
Gonzalez cast a wide net when searching for counsel. He made “several phone calls” and
reached out to “several attorneys” about the incident. Id. at 28:13-17. And that’s when he
landed on Irene Dymkar. “I made several phone calls, and I didn’t keep a record. But there were
several attorneys that I contacted before landing on Mrs. Dymkar.” Id. at 28:15-17; id. at 70:1017.
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Later, in response to this Court’s follow-up questions, Gonzalez testified that he may
have contacted up to twenty lawyers:
The Court:

I understood you to say at the outset that after the incident with the
Chicago Police Department, you contacted several attorneys and
you made several phone calls. At least that’s what I got in my
notes. That’s what I heard you to say.
Do I have that right?

A:

First it was Illinois Advocates. They took a consultation, dropped
the case.
Then I made several phone calls. I didn’t get – I didn’t catch any
attorneys [who] wanted to take the case. Then I found Ms.
Dymkar.

The Court:

Okay. Thank you.
Before filing for bankruptcy, how many lawyers did you reach out
to about the incident with the Chicago Police Department?

A:
The Court:
A:
The Court:

I – I couldn’t answer that. I don’t know.
I mean, is it two or three or four or five?
I don’t have an amount. I don’t have a log.
Right.
What’s your best estimate is what I’m asking you. What’s your
best recollection?

A:
The Court:
A:

I would say under 20.
Do you think it’s more than ten?
My best answer would be under 20. I – I don’t know.

Id. at 91:24 – 92:21 (emphasis added).

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Gonzalez nailed down the timing. He first contacted Ms. Dymkar “months after the
incident.” Id. at 28:21. He clarified that he first contacted her “less than a year after the
incident.” Id. at 28:22-24.
Gonzalez confirmed that he reached out to his current attorney before – not after – filing
for bankruptcy:
Q:

Okay. Is it fair to say that it was less than a year after the incident?

A:

Yes.

Q:

Okay. So then is it fair to say that you had first contacted Ms.
Dymkar before you filed your bankruptcy petition on January 12,
2017?

A:

I – I believe that’s true. She – I spoke to her, then then my
bankruptcy was filed afterwards, yes.
*

*

*

Q:

Just so we’re clear, you met the attorney that listened to you, Ms.
Dymkar, before you filed the bankruptcy, correct?

A:

Yes.

Id. at 28:22 – 29:4, 41:1-3.
But Gonzalez disagreed with the notion that he wanted to talk with a lawyer about filing a
potential claim. He wanted to talk with a lawyer about his rights. Id. at 29:5-10. “I did not
know I had a claim or a lawsuit. All I know, that I had rights, and I wanted to have a consult to
hear me out.” Id. But he felt that the police had violated his rights. “I felt that way, but I’m not
a lawyer. So I – I don’t know how to respond because it’s a legal matter. And I’m – I’m a
victim, not a lawyer.” Id. at 29:13-15.

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Gonzalez then addressed why he did not disclose the potential claim against the police in
his original bankruptcy petition. Right off the bat, Gonzalez took the position that there was
nothing to disclose because he hadn’t filed a lawsuit yet:
Q:

Okay. Now, is it fair to say – I think it is, but would you agree
with me that you did not list this lawsuit or potential lawsuit as an
asset in your bankruptcy filings when you filed them originally?

A:

I had no intention of – of, you know, not claiming this because I
did not know I had a claim or a lawsuit. There was no claim.
There was no demand for payment. There was no lawsuit filed.
I’m not a lawyer. And anybody on the street in this situation will
find themselves making that call, whether they have a lawsuit or
not.
Do you have a lawsuit when you don’t have a lawsuit? I – I would
say no, you don’t have a lawsuit till you actually file a lawsuit, or
if you’re asking for payment, if there’s some kind of payment that
you’re requiring. None of those existed at the time.

Id. at 32:2-15.
The City’s counsel asked why Gonzalez did not disclose this lawsuit in his original
bankruptcy petition. Gonzalez offered the following explanation:
Q:

Okay. Why did you not list this lawsuit in that paragraph [of the
bankruptcy petition], when that paragraph says “whether or not
you have filed a lawsuit”?

A:

At the time I did not know I had a claim or a lawsuit or a demand
for payment. Many things happened to me, and I would have to
list page by page all the things that have happened to me where I
believe there’s a potential lawsuit or a claim. It could be a car
accident. It could be somebody pushed me on the street.
So when I read that, I followed a dictionary where it told me that if
there is a claim, you would have to have a Court hear it. And that
was my basis of answering that question the way I did, because I
did not have a claim, I did not have a demand for payment, and I
did not have a lawsuit.

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The only thing that I did was talk to an attorney who dropped it,
called other attorneys who weren’t interested or who didn’t get
back to me, and then talked to – finally I met an attorney who
listened to me.
And then I had to file bankruptcy.
Id. at 40:7-25. Counsel later asked a follow-up, asking why Gonzalez did not list this incident as
a potential claim. He responded:
Q:

That’s – yeah, and that’s a good point, Mr. Gonzalez. Why did
you not list this incident as a potential claim that you may bring in
a future lawsuit when you filed your bankruptcy?

A:

If you heard my answer previously regarding Illinois Advocates,
they heard me on a consultation, and they punted. They said,
“We’re not going to take this case.”
This reflected on my decision on answering 33 [i.e., Question No.
33 on the original bankruptcy petition]. I do not – and I will repeat
it again and again as many times as you want to hear me. At the
time I believe I had no intent that I had a claim. I believed that I
had no lawsuit. I believed that I had no payment demand to
Chicago Police.
The only thing I did was to exercise my right as a citizen to seek
counsel from an attorney who handles something like this.

Id. at 41:17 – 42:5.
Gonzalez went round and round, parsing the distinction between a claim and a potential
claim. Id. at 96:5 – 101:6. He seemed to take the position that he didn’t have a potential claim
because he hadn’t filed a lawsuit yet. Id. at 33:15-17 (“The answer is that I had no intention of
claiming or filing a lawsuit when I did not know that there was a claim or a lawsuit.”).
Gonzalez took pains to point out that he had no claim against the police because he had
not yet filed a lawsuit. The following passage captures his position:

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The Court:

A:
The Court:
A:
The Court:
A:

The Court:

A:
The Court:
A:

Did you think that you had no obligation to disclose potential
claims?
Potential claims, yes.
Okay. Did you –
I–
Did you – I’m sorry. Go ahead.
I will just say that if it was potential claim, yes. If you’re talking
to an attorney about something that happened to you and you don’t
know what it is, I had to answer no for that. I – I do not have any
claim or filing of lawsuit or demand on payment on record or in
conversation in any form.
So did you understand that you had an obligation to disclose a
potential claim?
Yes.
Okay. What did you understand a potential claim to be?
Here it says “claims against third parties,” not “potential claims.”
So that has to – that changes the question.
But here it does say “claims against third parties.” Did I have a
claim against third parties? No. Did I know I had a federal
lawsuit? No, I did not know that. Whether there was one to be
filed or not, I don’t know. I did not know. And the third part, “or
made a demand for payment.” There was nothing on record.
The only thing that’s on record, consultation with an attorney after
a previous attorney dropped a consultation with them, which was
Illinois Advocates, and a filing on September 2017.
So I had no knowledge of this being a claim, a potential lawsuit, or
a demand for payment. The only thing I knew was I was
exercising my rights and speaking to an attorney and waiting for an
outcome.

The Court:

A:

Do you see where it says “whether or not you have filed a
lawsuit”?
Yes.
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The Court:

A:

What did you think the phrase “whether or not you have filed a
lawsuit” means?
I means from my point of view whether there is a lawsuit filed or
not, if – if it was tending to be a lawsuit. I had no knowledge of
this being a lawsuit or not being a lawsuit. The only thing I had
was a consultation with an attorney, and I was waiting for a
response of it [sic] going to be a lawsuit or not.

Id. at 96:16 – 98:7.
When asked, Gonzalez could not put a number on the value of his claim. He wanted the
jury to decide:
Q:

So it’s fair to say that you believe that your injuries are worth more
than a dollar. Is that right?

A:

It’s up to a jury. It could be zero; it could be infinity. I have no
idea. God bless who – however it ends up.

The Court:

A:

Did you ever tell the bankruptcy trustee that your damages might
be infinity?
No.

Id. at 65:7-13; see also id. at 112:8-11 (“But again, I had no knowledge of it being worth 45,000
or anything else except that we were under the guidance that this will be going to trial by jury,
and we have no knowledge of any amount of what the value of this case is.”).
Gonzalez then blamed the bankruptcy form. “This person who wrote this document or
paper made an error. They should have just put ‘potential’ right in the beginning, and therefore I
would have answered yes.” Id. at 99:22-25 (emphasis added); id. at 99:2-4 (“When you put –
had this – had this [sic] would have been reworded ‘potential lawsuits’ or ‘potential claims,’ I
would have answered differently.”); id. at 101:2-6.
He seemed to paint himself as a victim: “But the English that is used on this sentence has
got to be changed so that this does not happen to somebody else. It states, ‘Claims against third
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parties,’ not ‘potential claims.’ And I don’t want to sound smart-aleck. But you have to put –
words are important, very important, especially in a lawsuit.” Id. at 100:1-6 (emphasis added).
7.

The Retention Agreement

After the evidentiary hearing, another shoe dropped. The biggest shoe of them all.
This Court noticed that his amended bankruptcy petition contemplated sharing a portion
of any recovery with Plaintiffs’ counsel. That petition stated that Gonzalez would receive half of
any award (his former wife would get the other half), “minus attorneys’ fees, set at 40% of the
total settlement amount.” See Am. Bankruptcy Petition (Dckt. No. 157-2).
That statement suggested that there was a retention agreement. Presumably there was an
agreement establishing the 60/40 split between the client and the lawyer. And that agreement
would show when, exactly, Gonzalez retained counsel.
This Court wanted to know whether Gonzalez entered into a retention agreement before,
or after, filing the original bankruptcy petition. The retention agreement could help shed light on
when Gonzalez knew that he had a potential claim. The retention of a lawyer to pursue a
potential claim is relevant to whether a person is aware of the existence of a potential claim (and
thus aware of something of value), and when.
An agreement about how to split a potential recovery would reflect an awareness that
there might be a potential recovery. And an awareness of a potential recovery would go to
whether Gonzalez intended to deceive when he failed to disclose the potential claim to the
bankruptcy court.
So this Court ordered Gonzalez to file a copy of the retention agreement (under seal, if
necessary). See 3/5/21 Order (Dckt. No. 175). A retention agreement is not privileged. See In
re Walsh, 623 F.2d 489, 494 (7th Cir. 1980) (“As a general rule, matters involving the receipt of

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fees from a client are not privileged as they do not involve confidential communications. . . .
The grand jury may thus view the documents sought by the subpoena, including ledgers, bills,
time records, and retainer agreements.”); Epstein v. Am. Reserve Corp., 1985 WL 2598, at *3
(N.D. Ill. 1985) (noting that “fee arrangements are not ordinarily subject to the attorney-client
privilege”); see also 1 American Bar Association, Attorney-Client Privilege & the Work-Product
Doctrine § III.E1.E.5, at 131 (6th ed. 2017) (“Federal courts uniformly allow the identity of the
client and matters regarding fee arrangements to be discovered, except in very limited
circumstances when that discovery would actually reach client confidences. The rational[e] for
such discovery is twofold. First, fee arrangements are viewed as incidental to the attorney-client
relationship and do not usually involve disclosure of confidential communications arising in the
context of the professional relationship. Second, because the attorney-client privilege restricts
the availability of relevant information to a fact-finder, the privilege is applied only to the extent
necessary to achieve its purpose of protecting confidences made to obtain legal advice.”) (citing
cases); see also id. at § III.E1.E.3, at 125 (6th ed. 2017) (“Nor does the privilege extend to the
general nature of the legal services the attorney was retained to perform or to the terms and
conditions of the attorney’s engagement.”).
Gonzalez responded by filing a motion for a stay. See Mtn. (Dckt. No. 177). He then
filed a petition for a writ of mandamus with the Seventh Circuit. See Petition for Writ of
Mandamus, at 3, In re Juan Gonzalez, No. 21-1440 (7th Cir. March 10, 2021). And then
Gonzalez filed a second motion for a stay before this Court. See Mtn. (Dckt. No. 181). He
reiterated that he objected to the evidentiary hearing – which had taken place a week earlier –
and repeated that he had filed four motions objecting to the hearing (as an aside, this Court had

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already ruled on all of them). Id. at ¶ 4; see also 3/15/21 Order (Dckt. No. 184) (“There was no
need for yet another motion to repeat motions that the Court already ruled upon.”).
The Seventh Circuit denied the petition a few days later. See 3/15/21 Order (Dckt. No.
183). So this Court ordered Plaintiffs’ counsel to file the retention agreement, with leave to file
any privileged portions (if any) under seal. See 3/15/21 Order (Dckt. No. 184). But this Court
directed Gonzalez to submit the “complete, unredacted version.” See 3/5/21 Order (Dckt. No.
175).
Gonzalez responded by filing a redacted copy, and yet another motion. See 6/7/16
Retainer for Legal Services (Dckt. No. 187-1); Mtn. (Dckt. No. 187).
After receiving a redacted copy (only), this Court still did not know the full story. So this
Court once again ordered Gonzalez to submit an unredacted copy (and later confirmed that it
would be an in camera inspection). See 3/16/21 Order (Dckt. No. 189) (“The redacted material
is relevant to whether Plaintiff Gonzalez intended to conceal an asset, including his knowledge
of the potential value of the asset. The redacted material also is relevant to whether anyone
committed a fraud on the court.”); 3/16/21 Order (Dckt. No. 192).15
Gonzalez, at long last, submitted an unredacted copy of the retention agreement. See
6/7/16 Retainer for Legal Services (Dckt. No. 191-1). The retention agreement confirmed that
Gonzalez retained Plaintiffs’ counsel to pursue a possible claim against the police about the 2015
incident on June 7, 2016. Id. at 3 of 3.
Putting that date in perspective, Gonzalez retained his attorney only eight months after
the incident at his house on October 1, 2015. And more importantly, Gonzalez retained counsel
seven months before filing for bankruptcy in January 2017.

15

Defense counsel ultimately received the redacted version (Dckt. No. 187-1), but not the unredacted
version (Dckt. No. 191-1). See Defs.’ Statement (Dckt. No. 193).

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The very first paragraph made clear the purpose of the retention. He retained counsel to
investigate the incident with the police, and pursue a possible claim. “Juan Gonzalez (Client)
hereby retains and employs IRENE K. DYMKAR (Attorney) to pursue any claim whatsoever
which client may have for damages resulting from alleged police misconduct which occurred on
or about 10/1/15.” See 6/7/16 Retainer for Legal Services, at 1 of 3 (Dckt. No. 191-1).16
The agreement contemplated a potential claim for “damages” in federal district court. Id.
“The Attorney shall investigate and prosecute an action in federal district court based upon the
allegations of police misconduct which have been reported and described to her. Should the
investigation of this matter result in the Attorney’s determination or opinion that it is not
advisable to commence a lawsuit or continue prosecuting a lawsuit, then the Attorney shall
inform the Client of same.” Id. at ¶ 1.
The retention agreement covered the attorneys’ fees. Gonzalez agreed that counsel
would receive “forty percent (40%) of the recovery,” or fees based upon a lodestar, whichever
was greater. Id. at ¶ 5. So Gonzalez knew that he was entitled to receive the remaining 60% of
any recovery. Id.
Plaintiffs’ counsel then did the impossible (or, at least, did what she told the Court was
impossible.). Plaintiffs’ counsel gave Gonzalez an estimate of the value of his claim. Meaning a
specific, dollars-and-cents estimate. Right down to the dollar.

16

On March 5, 2021, this Court gave Gonzalez leave to file a redacted version of the retention agreement
on the public docket, and an unredacted version under seal, if he believed that the agreement contained
privileged information. See 3/5/21 Order (Dckt. No. 175). In response, Gonzalez filed a redacted version
on the public docket, and redacted only the portion of the retainer agreement that assigned a specific
monetary value to the potential claim. See 6/7/16 Retainer for Legal Services (Dckt. No. 187-1). So
Gonzalez necessarily believes that there was nothing confidential about the rest of the document, because
he filed it on the public docket despite having leave to file it under seal. In any event, there is nothing
confidential about the portions quoted in this Opinion.

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“It is agreed that the Attorney has made no guarantee regarding the success of any claim
or causes of action for which she has been retained. The Client has been advised and agrees that
a rough initial estimate of the total value of the total claim for all Clients retaining the Attorney
for this incident ranges from $[REDACTED] to $[REDACTED], although there is no
guarantee of this. The Client acknowledges agreement to this by placing his/her initials here.”
Id. at ¶ 14.
Right below that specific, down-to-the-dollar “estimate of the total value of the total
claim,” a set of handwritten initials appeared. “JG.” Id.
8.

The Takeaways

The story was long, but the key takeaways are relatively straightforward.
First, Gonzalez believed right away that the police had violated his rights. He contacted
the Independent Police Review Authority on the same day as the incident, and complained about
what happened.
Second, Gonzalez contacted counsel right away. He reached out to Illinois Advocates a
few days after the police entered his home.
Third, Gonzalez searched long and hard for an attorney. After Illinois Advocates refused
to take the case, Gonzalez continued to search for legal counsel. He didn’t call one or two
lawyers. He contacted up to 20 different attorneys.
Fourth, Gonzalez retained Irene Dymkar, his current attorney, in June 2016. That’s seven
months before filing for bankruptcy. He hired her to bring a possible claim for damages against
the police in federal district court. Plaintiffs’ counsel gave him a specific estimate of the value of
the claim. The attorney told Gonzalez that his claim was worth between $X and $Y. The
unredacted retention agreement includes precise dollar amounts.

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Fifth, Gonzalez filed for bankruptcy in January 2017, and answered questions under oath.
The form asked Gonzalez about “[o]ther amounts someone owes you.” The form also asked if
he had any “[c]laims against third parties, whether or not you have filed a lawsuit or made a
demand for payment.” It asked about “contingent and unliquidated claims of every nature,” too.
Sixth, Gonzalez didn’t say a word about the 2015 incident with the police in his 2017
bankruptcy petition. He didn’t mention anything about retaining a lawyer (in 2016) to pursue a
claim for damages in federal district court, either. He also didn’t disclose the estimate from his
lawyer – in the range of thousands of dollars – about the value of a possible claim. He answered:
“No.”
He filed this lawsuit eight months after filing for bankruptcy.
B.

Judicial Estoppel

Based on the record, the doctrine of judicial estoppel prevents Gonzalez from advancing
any claims. This Court finds that Gonzalez failed to disclose a potential claim against the police
when he filed for bankruptcy, and did so intentionally.
“Judicial estoppel is a doctrine of discretion that is intended to protect the integrity of the
judicial process.” See Juza v. Wells Fargo Bank, N.A., 794 F. App’x 529, 535 (7th Cir. 2020);
see also New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (noting that “courts have uniformly
recognized that its purpose is ‘to protect the integrity of the judicial process’”) (citation omitted);
Ladd v. ITT Corp., 148 F.3d 753, 756 (7th Cir. 1998) (“[T]he purpose of the doctrine . . . is to
reduce fraud in the legal process by forcing a modicum of consistency on a repeating litigant
. . . .”); In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990) (“Judicial estoppel is a doctrine
designed to prevent the perversion of the judicial process.”); 18B Charles Alan Wright et al.,
Fed. Practice & Procedure § 4477 (2d ed. 2020). The doctrine “protect[s] courts and creditors

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from deception and manipulation,” Spaine v. Cmty. Contacts, Inc., 756 F.3d 542, 547 (7th Cir.
2014), and “prevent[s] litigants from ‘playing fast and loose with the courts,’” In re Cassidy, 892
F.2d at 641 (citation omitted).
“The doctrine of judicial estoppel prevents litigants from manipulating the judicial
system by prevailing in different cases or phases of a case by adopting inconsistent positions.”
Spaine, 756 F.3d at 547. “A litigant is forbidden to obtain a victory on one ground and then
repudiate that ground in a different case in order to win a second victory.” Chaveriat v. Williams
Pipe Line Co., 11 F.3d 1420, 1427 (7th Cir. 1993); see also Williams v. Hainje, 375 F. App’x
625, 627 (7th Cir. 2010) (“Broadly speaking, judicial estoppel precludes a party from
abandoning positions after they have prevailed on them in earlier litigation.”); Levinson v. United
States, 969 F.2d 260, 264 (7th Cir. 1992) (“It is intended to protect the courts from being
manipulated from chameleonic litigants who seek to prevail, twice, on opposite theories.”).
A prime example of the “[m]anipulation” of the judicial process occurs “when a debtor
deliberately conceals a contingent or unliquidated claim during bankruptcy proceedings and then
later seeks to profit from that claim after obtaining a discharge of her debts.” Spaine, 756 F.3d at
547; Matthews v. Potter, 316 F. App’x 518, 522 (7th Cir. 2009) (“[C]ourts consistently hold that
a debtor who conceals a legal claim and denies owning the asset in bankruptcy is judicially
estopped from later pursuing that claim to the debtor’s personal benefit.”); Williams, 375 F.
App’x at 627 (“In the bankruptcy setting, a debtor who receives a discharge by concealing the
existence of a chose in action cannot wait until the bankruptcy ends and then pursue the claim.”);
Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir. 2006) (“All six appellate courts that have
considered this question hold that a debtor in bankruptcy who denies owning an asset, including

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a chose in action or other legal claim, cannot realize on that concealed asset after the bankruptcy
ends.”).
“Plenty of authority” supports the notion that “a debtor in bankruptcy who receives a
discharge (and thus a personal financial benefit) by representing that he has no valuable chose in
action cannot turn around after the bankruptcy ends and recover on a supposedly nonexistent
claim.” Biesek v. Soo Line R.R. Co., 440 F.3d 410, 412 (7th Cir. 2006); see also Rosenshein v.
Kleban, 918 F. Supp. 98, 104 (S.D.N.Y. 1996) (“The rationale for these decisions is that the
integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their
assets. . . . The interests of both the creditors, who plan their actions in the bankruptcy
proceeding on the basis of information supplied in the disclosure statements, and the bankruptcy
court, which must decide whether to approve the plan of reorganization on the same basis, are
impaired when the disclosure provided by the debtor is incomplete.”).
A debtor cannot tell the bankruptcy court that a claim is worthless or non-existent, and
then turn around and tell a district court that a claim has value. “[A] debtor is judicially estopped
from litigating after the bankruptcy ends; having told the bankruptcy court implicitly that any tort
claim had no value; and having received a discharge in response, the debtor is estopped from
contending in a later suit that the claim is valuable.” See Metrou v. M.A. Mortenson Co., 781
F.3d 357, 358 (7th Cir. 2015).
Part of the problem is the fact that a party is attempting to win – twice – on opposite
theories. See Astor Chauffeured Limousine Co. v. Runnefeldt Inv. Corp., 910 F.2d 1540, 1548
(7th Cir. 1990) (“The offense is not taking inconsistent positions so much as it is winning, twice,
on the basis of incompatible positions.”) (emphasis in original). But another (perhaps bigger)
part of the problem is that a party is deceptive – even if it happens only once. See Grochocinski

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v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 797 (7th Cir. 2013) (noting that preventing
courts from being “abused and misled” is “a core purpose of judicial estoppel”); Cannon-Stokes,
453 F.3d at 448 (noting that the doctrine “induces debtors to be truthful in their bankruptcy
filings”); McNamara v. City of Chicago, 138 F.3d 1219, 1225 (7th Cir. 1998) (“If repudiation [of
an earlier successful position] were permitted, the incentive to commit perjury and engage in
other litigation fraud would be greater.”); Chaveriat, 11 F.3d at 1428 (“By making them choose
one position irrevocably, the doctrine of judicial estoppel raises the cost of lying.”). Courts have
an institutional interest in rooting out dishonesty to courts.
Judicial estoppel is an “equitable doctrine.” See Cannon-Stokes, 453 F.3d at 448. It is “a
matter of discretion.” See Williams, 375 F. App’x at 627; see also In re Cassidy, 892 F.2d at 642
(“Estoppel is an equitable concept, and its application is therefore within the court’s sound
discretion.”).
Hard-and-fast rules do not apply. “Judicial estoppel is a flexible equitable doctrine that is
not ‘reducible to any general formulation of principle’ and accordingly does not lend itself to
rigid rules.” Grochocinski, 719 F.3d at 796 (quoting New Hampshire, 532 U.S. at 750). Courts
consider factors such as whether a party took inconsistent positions, whether the party succeeded
in the first position, and whether the party would gain an unfair advantage or impose an unfair
detriment on the opposing party. Id. But those factors are “general guideposts,” and “not a rigid
test that must be applied every time the issue of judicial estoppel is raised.” In re KnightCelotex, LLC, 695 F.3d 714, 722 (7th Cir. 2012).
Overall, a district court “needs freedom to consider the equities of an entire case.” See
Grochocinski, 719 F.3d at 796. A court can consider “all the relevant equities” in the case at
hand. In re Knight-Celotex, LLC, 695 F.3d at 722; see also 18 James Wm. Moore et al., Moore’s

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Federal Practice § 134.31 (3d ed. 2020) (“Because the doctrine is equitable in nature, it should
be applied flexibly, with an intent to achieve substantial justice.”).
District courts can raise the issue of judicial estoppel on their own, and for good reason.
Judicial estoppel is about protecting the courts, and courts have an interest in protecting
themselves. See Grochocinski, 719 F.3d at 795 (“It may be raised by any party, regardless of
whether the party was prejudiced by the inconsistency, or by the court on its own motion.”); In
re Cassidy, 892 F.2d at 641 (“The doctrine of estoppel is intended to protect the courts rather
than the litigants, so it follows that a court, even an appellate court, may raise the estoppel on its
own motion in an appropriate case.”).
The Seventh Circuit has drawn a dividing line between intentional non-disclosure and
inadvertent non-disclosure. A debtor who acts in good faith – but mistakenly omits a potential
claim in a bankruptcy schedule – might not lose the claim through judicial estoppel. See Metrou,
781 F.3d at 358–60; Williams, 375 F. App’x at 627. A good example is a debtor who fails to
include a potential claim in the written schedule – for innocent reasons – but later discloses it
orally to the trustee at the creditors’ meeting (before discharge). See Spaine, 756 F.3d at 546–47
(“That is not to say that Spaine’s oral disclosure of the lawsuit would necessarily foreclose use of
judicial estoppel if Community Contact could prove that Spaine’s omission, though later cured,
was an intentional effort to conceal an asset from her creditors.”); Matthews, 316 F. App’x at
522. But an intentional non-disclosure is another story.
After considering the record, and weighing the equities, this Court finds that Gonzalez
deliberately misled the bankruptcy court by failing to disclose a potential claim against the
police. The non-disclosure of the potential claim was not an accident or an oversight. It was an
attempt to keep the damages for himself.

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Consider, for starters, what transpired. The police entered Gonzalez’s home in 2015, and
according to him, pointed a gun at his face. See Gonzalez Dep., at 43:2 – 45:15 (Dckt. No.
124-11). The episode was “frightening.” See Mtn., at 5 (Dckt. No. 149); see generally Gonzalez
Dep., at 83:2 – 93:23. He testified that the encounter forced him to lose sleep – he has had
nightmares, and “[m]any” sleepless nights. Id. at 88:8 – 93:23.
He testified about his fear, too. “I was scared. I thought I was going to get my head
blown off.” Id. at 83:6-7. He testified about his continuing fear of the police. Id. at 88:11-17.
And he testified that he doesn’t feel safe in his home anymore. Id. at 86:2-19. He seeks
emotional distress damages because he claims that he was traumatized. See 3/3/21 Tr., at
60:4-17 (Dckt. No. 201) (describing his ongoing fear of the police in 2021); id. at 60:7-10 (“My
– my words are that I am – fear the police. I have a fear with them now.”).
The nature of the incident makes it unlikely that Gonzalez overlooked it. Gonzalez
testified about a traumatizing event that had significant, long-term impacts on him. That’s not
the type of thing that a person would easily forget.
This case doesn’t involve a situation where a person does not realize right away that his
or her rights were violated. Quite the opposite. From day one, Gonzalez objected to the search
and believed that the police had violated his rights. He called the Independent Police Review
Authority on the same day that the police searched his home. See Gonzalez Dep., at 74:2 –
76:11 (Dckt. No. 124-11).
And then he embarked on a search for lawyers. In fact, he reached out to Illinois
Advocates only a few days after the incident in October 2015. See 3/3/21 Tr., at 93:7-8 (Dckt.
No. 201); see also id. at 101:22 – 102:24 (confirming that he contacted Illinois Advocates

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“days,” not “months,” after the incident). That call revealed an awareness, early on, that he
might have a potential claim.
When Illinois Advocates declined the case, Gonzalez kept looking for lawyers. He
placed a lot of calls, to a lot of lawyers. In fact, Gonzalez testified that he may have called up to
20 lawyers. Id. at 91:24 – 92:21.
He cast a wide net, again and again, searching for counsel. Everything about that effort –
the volume of the calls, the persistence of the search, and the scope of the inquiries – shows an
awareness of a potential claim. People don’t tend to call 20 lawyers unless they think they have
a claim.
Gonzalez wasn’t calling lawyers simply because he wanted someone to talk to. As
Gonzalez later admitted, he “continued to search for an attorney to bring a lawsuit about the
search and retained Irene Dymkar.” See Petition for Writ of Mandamus, at 3, In re Juan
Gonzalez, No. 21-1440 (7th Cir. March 10, 2021) (emphasis added).
Gonzalez ultimately retained counsel in June 2016. See 6/7/16 Retainer for Legal
Services, at 3 of 3 (Dckt. No. 191-1). That’s seven months before he filed for bankruptcy in
January 2017. So, more than half a year before filing for bankruptcy, Gonzalez knew that filing
a lawsuit was a distinct possibility.17

17

In his mandamus petition before the Seventh Circuit, Gonzalez gave a misleading characterization of
the chronology. Gonzalez stated: “That attorney [from Illinois Advocates] declined to represent
petitioner, but another attorney from that firm subsequently agreed to represent petitioner in a bankruptcy
proceeding. . . . Petitioner continued to search for an attorney to bring a lawsuit about the search and
retained Irene Dymkar.” See Petition for Writ of Mandamus, at 3, In re Juan Gonzalez, No. 21-1440 (7th
Cir. March 10, 2021). That was not the sequence of events. He retained counsel to bring a lawsuit before
filing for bankruptcy, not the other way around. Gonzales retained Irene Dymkar in June 2016, and filed
for bankruptcy in January 2017. The passage above suggests the opposite – it mentions the bankruptcy
filing, and then says that Gonzalez “continued to search for an attorney.”

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Gonzalez retained her for a very specific reason: to consider bringing a claim against the
police for the incident from October 2015. “Juan Gonzalez (Client) hereby retains and employs
IRENE K. DYMKAR (Attorney) to pursue any claim whatsoever which client may have for
damages resulting from alleged police misconduct which occurred on or about 10/1/15.” See
6/7/16 Retainer for Legal Services, at 1 of 3 (Dckt. No. 191-1) (emphasis added).
Gonzalez knew full well that filing a lawsuit was a distinct possibility. In fact, the
agreement contemplated a potential claim for “damages” in federal district court. Id. “The
Attorney shall investigate and prosecute an action in federal district court based upon the
allegations of police misconduct which have been reported and described to her.” Id. at ¶ 1
(emphasis added).
Gonzalez knew that the claim had value, too. The agreement included a fee arrangement
that entitled him to receive 60% of any potential recovery. Id. at ¶ 5. Gonzalez may not have
known what that recovery would be. But he did know that he would be entitled to receive 60%
of the pie, whatever it was.
If the agreement said nothing else, it would establish beyond question that Gonzalez
knew about a potential claim long before filing for bankruptcy. But here, the agreement went
one step further. Plaintiffs’ counsel gave him an estimate about the value of the claim. She gave
him a “rough initial estimate,” and pegged it to a number. To the dollar.
“It is agreed that the Attorney has made no guarantee regarding the success of any claim
or causes of action for which she has been retained. The Client has been advised and agrees that
a rough initial estimate of the total value of the total claim for all Clients retaining the Attorney
for this incident ranges from $[REDACTED] to $[REDACTED], although there is no

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guarantee of this. The Client acknowledges agreement to this by placing his/her initials here.”
Id. at ¶ 14 (emphasis added).
The Court received an unredacted copy for an in camera inspection. The document
includes a handwritten estimate of the “total value” of the claim, from $X to $Y. Gonzalez’s
attorney told him that the claim had value, and she quantified it.
Gonzalez didn’t overlook it. He read it. The agreement shows that he signed his initials,
less than an inch away. “JG.” Id.
Long before he filed for bankruptcy, Gonzalez knew that he had a potential claim. And
he knew that it had value. The facts allow only one possible conclusion. Gonzalez did not make
a mistake when he neglected to mention it in his bankruptcy petition. He failed to disclose the
potential claim, and did so intentionally.
C.

Gonzalez’s Response

Gonzalez did not help his cause at the evidentiary hearing. A good portion of the time,
Gonzalez attempted to play word games. He tied himself in linguistic knots, peddling the notion
that the bankruptcy form does not cover potential claims. He went so far as to suggest that the
form is wrong, painting himself as a victim.
The bankruptcy schedule is about as clear as it could be. Gonzalez had a duty to disclose
any “[c]laims against third parties, whether or not you have filed a lawsuit or made a demand for
payment.” See Chapter 7 Petition, at 14 of 54 (Dckt. No. 172) (emphasis added). The question
covered claims, and potential claims. That was the whole point of the phrase “whether or not
you have filed a lawsuit.” Id.
The very next question asked about any “[o]ther contingent and unliquidated claims of
every nature.” Id. And the following question was a catch-all, covering “[a]ny financial assets

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you did not already list.” Id. The form embraced everything, and excluded nothing. See
Cannon-Stokes, 453 F.3d at 447 (noting that the all-encompassing language of the bankruptcy
schedule, which asked about “contingent and unliquidated claims of every nature,” left “no room
for quibbles”).
Gonzalez points to the fact that he later filed an amended bankruptcy petition and
disclosed the existence of this lawsuit. That belated disclosure was no act of valor. He disclosed
the existence of this lawsuit to the trustee on July 17, 2018. See In re Juan Gonzalez, 17-bk00895 (Bankr. N.D. Ill.) (Dckt. No. 22 in the bankruptcy docket). The disclosure took place
after defense counsel forced his hand, by inquiring about the non-disclosure at deposition.
A party cannot wipe away an intentional falsehood by belatedly telling the truth,
especially after getting caught. See, e.g., Novotny v. Plexus Corp., 777 F. App’x 164, 165 (7th
Cir. 2019) (affirming the entry of summary judgment against the plaintiff-debtor based on
judicial estoppel, even though he “moved to reopen his bankruptcy so that he could amend his
disclosure of assets to add his discrimination claims from this lawsuit”); Douglas v. I.Q. Data
Int’l, Inc., 2021 WL 2000282, at *3–4 (N.D. Ill. 2021) (dismissing a case on judicial estoppel
grounds despite a belated disclosure to the bankruptcy court); Hernandez v. Forest Pres. Dist. of
Cook Cty., 2010 WL 1292499, at *5 (N.D. Ill. 2010) (Dow, J.) (“District courts in this circuit
likewise have concluded that the doctrine of judicial estoppel applies despite the plaintiff’s effort
to amend his bankruptcy schedule.”); Bland v. Rahar, 2008 WL 109388, at *3 (C.D. Ill. 2008)
(finding that it “does not matter” that the debtor “quickly moved to amend his bankruptcy
disclosures”); Wiggins v. Citizens Gas & Coke Util., 2008 WL 4530679, at *3 (S.D. Ind. 2008)
(“The cases are uniform that corrective action taken only after being ‘caught’ and compelled to
do so by one’s opponent is too late; it is not a defense to the application of judicial estoppel.”).

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Courts depend on truth-telling. And bankruptcy courts, in particular, rely on full
disclosure by debtors. Without it, creditors might get the shaft. It would create bad incentives if
debtors could escape the consequences of non-disclosure by telling the truth after the fact.
Lowering the cost of non-disclosure would lead to more non-disclosure.
Belated truth-telling does not cure earlier falsehoods. As Judge Tinder once explained:
“The reopening of a closed bankruptcy case to disclose a claim previously known but not
disclosed as an asset does not render judicial estoppel inapplicable. The bankruptcy and district
courts are still burdened by the party’s attempt at deception . . . and the doctrine is intended to
protect the integrity of the judicial process.” See Back v. Town of Cloverdale, 2001 WL 987832,
at *3 (S.D. Ind. 2001) (Tinder, J.) (emphasis added).
Gonzalez points to the fact that the bankruptcy trustee later questioned him about the
nature of his claim, and decided that the “lawsuit should be abandoned.” See Mtn., at 4 (Dckt.
No. 152); see also 2/11/21 Tr., at 8:7-10 (Dckt. No. 156). That makes no difference. The trustee
and the Court sit in different seats, and wear different hats. They ask different questions, too.
The trustee’s job is to maximize the recovery for creditors, and must decide whether a
claim is worth pursuing, from an economic perspective. A trustee must weigh the value of the
claim, as well as the cost and disruption of reopening a closed bankruptcy case. See Scoggins v.
Arrow Trucking Co., 92 F. Supp. 2d 1372, 1376 (S.D. Ga. 2000). The Court, in contrast, is not
so concerned with dollars and cents. The Court must protect the integrity of the judicial process
itself.
Gonzalez did not exactly come clean to the bankruptcy trustee, either. Gonzalez didn’t
mention anything about a gun pointed at his face. He didn’t divulge sleepless nights, or

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nightmares, or fear of the police, or emotional trauma. He didn’t say anything about Judge
Castillo’s assessment of the value of the case during the April 2018 settlement conference.
Gonzalez also argues that a jury, not a court, must decide the issue of judicial estoppel.
See Mtn. (Dckt. No. 148); Pls.’ Mem. (Dckt. No. 186). Not so. The Seventh Circuit has
repeatedly upheld determinations by district courts on the issue of judicial estoppel, including
cases with factual disputes about whether a debtor acted intentionally. See Novotny, 777 F.
App’x at 165 (affirming the district court’s “finding” that the omission was intentional);
Williams, 375 F. App’x at 627 (affirming summary judgment when the district court “determined
that Williams had intentionally concealed the lawsuit” and “concluded that judicial estoppel
precluded him from pursuing it for his own benefit”); Matthews, 316 F. App’x at 523 (noting that
the district court “must make a factual determination, by evidentiary hearing if necessary,
regarding the nature and extent of the disclosures Matthews made to the Chapter 7 trustee”); see
also Pruitt v. Quality Labor Servs., LLC, 2018 WL 5808461 (N.D. Ill. 2018) (resolving the issue
of judicial estoppel after holding an evidentiary hearing and making credibility determinations).
“It is, in short, a doctrine for the Court, not for a jury, to assess and, if warranted, apply.” See
Ellis v. Alexander, 2018 WL 1942650, at *4 (N.D. Ill. 2018).
The reason stems from the very nature of judicial estoppel. “[J]udicial estoppel is an
equitable doctrine invoked by a court at its discretion.” New Hampshire, 532 U.S. at 750
(cleaned up) (emphasis added). It is an “equitable concept designed to prevent the perversion of
the judicial system.” Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1193 (7th Cir. 1992); see
also 18 James Wm. Moore et al., Moore’s Federal Practice § 134.31 (3d ed. 2020) (“Because
the doctrine is designed to protect the integrity of the judicial system, judicial estoppel is

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frequently described as equitable or discretionary in nature. Because the doctrine is equitable in
nature, it should be applied flexibly, with an intent to achieve substantial justice.”).
It is the job of a judge to protect the integrity of the judicial process and “prevent the
perversion of the judicial system.” Allison, 979 F.2d at 1193. And judges, not juries, are best
positioned to do the sort of flexible weighing of factors that the application of the doctrine
requires. A jury finds facts, but a judge is better situated to determine when application of
judicial estoppel would “achieve substantial justice.” See 18 James Wm. Moore et al., Moore’s
Federal Practice § 134.31 (3d ed. 2020).
Other features of the doctrine bolster that conclusion. A court can raise judicial estoppel
sua sponte. See New Hampshire, 532 U.S. at 750 (“Because the rule is intended to prevent
‘improper use of judicial machinery,’ judicial estoppel ‘is an equitable doctrine invoked by a
court at its discretion.’”) (citations omitted). And if a court can raise the doctrine on its own, it is
not a stretch to think it can also decide it. In a similar vein, a court is not bound to accept a
party’s waiver of the doctrine. See Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d
853, 857–58 (7th Cir. 2001). The judiciary is the guardian of the integrity of its own
proceedings. And when judicial estoppel is at issue, institutional interests are at play.
Plus, the appellate standard of review for judicial estoppel is abuse of discretion. See
Grochocinski, 719 F.3d at 795 (“Because the doctrine is a ‘matter of equitable judgment and
discretion,’ we review a district court’s application of the doctrine for an abuse of that
discretion.”); In re Knight-Celotex, LLC, 695 F.3d 714, 721 (7th Cir. 2012). A jury’s decision,
on the other hand, is overturned “[o]nly if no rational jury could have found for the nonmovant.”
See Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 601 (7th Cir. 2019). The abuse of discretion
standard of review suggests a discretionary judgment call by the district court, not the jury.

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Gonzalez relies on the Seventh Circuit’s decision in Spaine v. Community Contacts, Inc.,
756 F.3d 542 (7th Cir. 2014), but that case does not stand for the proposition that judicial
estoppel is a question for the jury. In Spaine, the district court granted summary judgment based
on judicial estoppel because the debtor failed to disclose a potential claim on the bankruptcy
schedule. But the debtor presented evidence that she disclosed the potential claim orally – a fact
that the district court did not consider. Id. at 548 (“If there were undisputed evidence that Spain
intentionally concealed her claim, we would agree. As noted above, though, the district court
overlooked Spaine’s testimony about her oral disclosure during the bankruptcy.”). So the
Seventh Circuit sent it back. The Seventh Circuit never said that, on remand, the jury needed to
decide if judicial estoppel applied.
Ultimately, the judge-or-jury question makes no difference. On this record, no
reasonable jury could find that Gonzalez failed to disclose his potential claim for innocent
reasons.
D.

The Statements by Gonzalez, and by Plaintiffs’ Counsel

One final word. The Court is concerned about the veracity of statements that Gonzalez
and his counsel made to this Court while briefing this issue. Gonzalez and his counsel made a
series of statements that tested – if not crossed – the boundaries of candor to the Court.
One glaring example involves the estimate of the value of the claim. This Court directed
Plaintiff – not once, but twice – to provide an estimate of the value of his claim. The Court did
so because the value of the claim has a bearing on the likelihood that Gonzalez simply forgot it.
In response, Gonzalez and his counsel repeatedly told this Court that it was not doable –
even impossible. See 2/11/21 Tr., at 20:24-25 (Dckt. No. 156) (“So I’m not sure it’s possible to
do what you’re asking us to do, Your Honor.”); id. at 22:11-12 (“Yeah, I – I don’t know if that’s

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possible, Your Honor.”); Mtn., at 3 (Dckt. No. 149) (stating that pinning down the amount of
damages is “something he cannot do”) (bold omitted); Statement of Juan Gonzalez, at ¶ 9 (Dckt.
No. 153) (stating that he was “not able to give an exact figure on what my emotional damages
are worth”); Statement of Juan Gonzalez, at ¶ 9 (Dckt. No. 168) (“I do not mean at all to be
disrespectful to the Court, but the Court is asking me to do something I am not able to do. As
already stated, I am not able to give an exact figure on what my emotional damages are worth.”).
Those responses lacked candor. Gonzalez estimated the value of the claim in his
amended bankruptcy petition in 2019, after his non-disclosure came to light. And Gonzalez
received a dollars-and-cents estimate of the value of the claim as early as June 2016, more than
four years before this Court directed him to provide the same thing.
Other statements give this Court pause, too. Gonzalez and his lawyer represented to this
Court that he did not know that he had a potential claim. And he did not know the value of any
such claim, either.
Those statements did not age well. The evidentiary hearing established that Gonzalez
vigorously searched for a lawyer to bring a potential claim. And the retention agreement shows
that he knew the value of any such claim, long before filing for bankruptcy.
Consider for example, the following statements. The one on the left is a statement in a
submission to this Court, and the statement on the right is from the retention agreement:

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Plaintiffs’ Brief

“The Court may believe that plaintiff Juan
Gonzalez has known the value of his lawsuit
all along and failed to tell the trustee, but that
just did not happen.”

See Mtn., at 4 (Dckt. No. 149).

Retention Agreement

“The Client has been advised and agrees that
a rough initial estimate of the total value of
the total claim for all Clients retaining the
Attorney for this incident ranges from
$[REDACTED] to $[REDACTED],
although there is no guarantee of this. The
Client acknowledges agreement to this by
placing his/her initials here.”
See 6/7/16 Retainer for Legal Services, at 3 of
3 (Dckt. No. 191-1).

As a second example, consider the following statements about whether Plaintiffs’ counsel
ever gives estimates to clients about possible damages:

Hearing

Retention Agreement

“I never tell clients, you know, you could
expect X amount of dollars here or Y amount
of dollars, because that – I think that’s
irresponsible for an attorney.”

“The Client has been advised and agrees that
a rough initial estimate of the total value of
the total claim for all Clients retaining the
Attorney for this incident ranges from
$[REDACTED] to $[REDACTED],
although there is no guarantee of this. The
Client acknowledges agreement to this by
placing his/her initials here.”

See 2/11/21 Tr., at 20:21-23 (Dckt. No. 156)
(emphasis added).

See 6/7/16 Retainer for Legal Services, at 3 of
3 (Dckt. No. 191-1).

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As a third example, consider the following statements about whether Gonzalez was aware
that he had a possible claim:
Plaintiffs’ Brief

Retention Agreement

“Plaintiff did not learn that he had a possible
lawsuit until after he was discharged in
bankruptcy and his bankruptcy attorney did
not advise him that a possible civil rights
claim was an asset.”

“The Attorney shall investigate and prosecute
an action in federal district court based upon
the allegations of police misconduct which
have been reported and described to her.”

See Pls.’ Resp. to Defs.’ Statement of Facts,
at ¶ 50 (Dckt. No. 125) (emphasis added).

See 6/7/16 Retainer for Legal Services, at 3 of
3 (Dckt. No. 191-1).

There are other problematic statements, too. Plaintiffs’ counsel made all of the following
statements to this Court in 2021, long after Gonzalez retained counsel in 2016:
•

“Even attorneys, such as plaintiffs’ attorney, who have been practicing law for a
number of years, would not and could not give an exact figure for emotional
damages or punitive damages.” See Mtn., at 4 (Dckt. No. 149).

•

“At the point when plaintiff Juan Gonzalez had his first meeting with the trustee
in bankruptcy in early 2017, there was no lawsuit. He had not even been told by
counsel that he had a viable claim. Mr. Gonzalez would not [have] been able to
put a figure on an asset that he did not even know was an asset.” Id. (emphasis
added).

•

“If he gives an honest answer in response to the Court’s order and says he does
not know the value of the lawsuit, the Court says it may dismiss his lawsuit.” Id.
(emphasis added).

•

“At the time of my first meeting with the trustee on March 2, 2017, I had no
knowledge about the value of my experience of police misconduct, or whether it
had a value.” See Statement of Juan Gonzalez, at ¶ 7 (Dckt. No. 168) (emphasis
added).

•

“At the time of my first meeting with the trustee on March 2, 2017, there was no
lawsuit. I did not understand my complaint of police misconduct to be a ‘claim.’”
Id. at ¶ 6.
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Case: 1:17-cv-07080 Document #: 203 Filed: 09/15/21 Page 90 of 90 PageID #:2140

The Court will address this topic by separate order. Suffice it to say that the facts, once
exposed, told a different story about what transpired.
Conclusion
The Court grants Defendants’ motion for summary judgment on Count I (for the entry
into the home). The Court grants Defendants’ motion for summary judgment on Count I (for the
existence of the search). The Court denies Defendants’ motion for summary judgment on Count
II (for the scope and duration of the search). The Court grants summary judgment to Officer
Bubalo on all claims pending against him. The Court grants summary judgment to all
Defendants on all claims by Plaintiff Gonzalez based on judicial estoppel.

Date: September 15, 2021
Steven C. Seeger
United States District Judge

90