Tate et al v. City of Chicago et al

Filing 94

MEMORANDUM Opinion and Order: Defendants' motion to dismiss 69 is denied. The parties should meet and confer regarding a discovery schedule in advance of the status hearing set for November 20, 2020. Signed by the Honorable Thomas M. Durkin on 11/16/2020. Mailed notice. (ecw, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TONI TATE, for herself and on behalf of
her minor child, CALI MCCULLER;
CHRISTOPHER HARBIN; AND CIERRA
HARBIN,
Plaintiffs,

No. 19 C 7506

v.

Judge Thomas M. Durkin

THE CITY OF CHICAGO; SUZANNE L.
NIEMOTH; JESSE ALVAREZ; JEREMY D.
ARRINGTON; OSCAR BENAVIDES;
ANTHONY P. BRUNO; YVETTE CARRANZA;
DANIELLE M. CUSIMANO; VICTOR J.
GUEBARA; HORST E. HEGEWALD;
BRENDAN T. MULLIGAN; SEAN RYAN;
JEFFERY A. SHAFER; MATTHEW J.
SIEBER; CURTIS L. WEATHERSBY; and
OTHER CURRENTLY UNKNOWN CHICAGO
POLICE OFFICERS,
Defendants.
MEMORANDUM OPINION AND ORDER
Toni Tate and her children allege that certain Chicago Police Officers violated
their civil rights and state law in obtaining and executing a search warrant of their
apartment. The individual officers and the City of Chicago have moved to dismiss for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 69.
That motion is denied.
Legal Standard
A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.
Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

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provide “a short and plain statement of the claim showing that the pleader is entitled
to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of
the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed
factual allegations” are not required, “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
The complaint must “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d
362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws all reasonable inferences
in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).
The first several minutes of Defendants’ search of Plaintiffs’ apartment were
recorded by the defendant officers’ body worn cameras. Plaintiffs reference those
videos in their complaint and Defendants attached the videos to their motion.
Plaintiffs do not object to their consideration and the Seventh Circuit has held that
it is proper to consider videos that are incorporated by reference in a complaint on a
motion pursuant to Rule 12(b)(6). See Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir.

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2013). So in addressing Defendants’ motion, the Court considers facts readily
apparent from the videos along with Plaintiffs’ allegations.
Background
Defendant Officers Suzanne Niemoth, Sergeant Anthony Bruno, Danielle
Cusimano, and Horst Hegewald conducted the investigation that led to the search of
Plaintiffs’ apartment. Defendant Lieutenant Jesse Alvarez signed-off on the affidavit
Officer Niemoth prepared supporting the application for a search warrant. The
affidavit states in relevant part:
On [August 4, 2019] [a confidential informant] related to
[Niemoth] that heroin was being sold by “Drako” a male
black, approximately 55-60 [years] old, at 6134 S. Vernon
Ave., 2nd floor South apartment. [The informant] related
on [August 4, 2019] he went to 6134 S Vernon Ave to the
2nd floor South apartment and asked “Drako” for two bags
of “D”, a street term for heroin. “Drako” then left [the
informant’s] sight and returned a short time later with 2
small clear ziplock bags of suspect heroin in it. [The
informant] then tendered [cash] to “Drako” who then
tendered the 2 small clear ziplock bags of suspect heroin to
[the informant].
[The informant] stated that [he] knows the contents of the
bags that [he] received from “Drako” to be heroin because
[the informant] has been using heroin for over twenty years
and is familiar with the color and consistency of the heroin
as well as the methods of packaging it. [The informant]
further related that [he] has purchased heroin from
“Drako” at 6134 S Vernon Ave, several times over the last
couple months and has each time received the same
euphoric high.
On [August 4, 2019], [Niemoth] then, accompanied by [the
informant], went to the address of 6134 S Vernon Ave
where [the informant] pointed to the 2nd floor South
apartment of a red brick multi-unit building and identified
it as the location [he] purchased the heroin from on [August
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4, 2019]. [Niemoth] observed 6132-6134 clearly visible on
the front of the building and determined 6134 to be the
address of the South apartments. [Niemoth] then
conducted an ICLEAR search for “Drako” and located
Andre King . . . fitting the nickname and physical
description provided by [the informant]. [The informant]
was then shown an ICLEAR photo of Andre King . . . and
positively identified Andre King . . . as the “Drako” who [the
informant] purchased heroin from on [August 4, 2019].
Based upon the above stated facts [Neimoth] believes that
probable cause does exist to conduct a search of Andre King
. . . also known as “Drako” . . . and the 2nd floor South
apartment of the red brick 3-story multi-unit building
located at 6134 S Vernon Ave[.]
R. 69-1 at 3-4. The warrant application also states that the informant “was brought
before” the judge who issued the warrant, “sworn to the contents of the complaint and
made available for questioning.” Id. at 4. The document also states that the
informant’s “criminal history, including possible pending investigations if any, has
been presented and made available to the undersigned judge.” Id. 1
The investigating officers (except for Alvarez), along with the other named
defendants, executed the warrant shortly before 10 p.m. on August 5, 2019, one day
after the informant claimed to have bought drugs there. As the officers walked
towards the building’s entrance, plaintiffs Cierra Harbin (22-years-old) and
Christopher Harbin (18-years-old) were seated on the balcony over-looking the

In a footnote in their brief, Defendants mention that defendant Officers Cusimano
and Hegewald, under Sergeant Bruno’s supervision, used the informant to conduct a
controlled buy at Plaintiffs’ residence. See R. 69 at 11 n.10. Notably, the officers did
not see fit to include this information in the affidavit supporting the warrant
application. In any case, while this information is relevant, it is a factual contention
outside the complaint and the Court will not consider it on this motion to dismiss.
1

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entrance. Plaintiffs allege that Cierra called down to the officers and offered to let
them in the building. R. 60 ¶ 62. The officers looked at her but did not respond. Id.
The officers’ body camera videos show that the officers broke through the glass
entrance door and entered the apartment building’s entryway. After they broke the
glass door they verbally announced the presence of the Chicago Police Department as
they entered the vestibule. The officers walked up the stairs with their guns drawn
and announced the presence of the Chicago Police Department outside Plaintiffs’
apartment door. The videos show that about five seconds after the announcement,
Defendants broke through Plaintiffs’ apartment door.
The videos also show that upon Defendants’ entrance into the apartment,
Plaintiffs were fully compliant with the officers’ commands. Defendants ordered
plaintiff Christopher Harbin to the floor at gunpoint and handcuffed him. Defendants
also handcuffed Tate. Plaintiff Cierra Harbin ran into a bedroom to gather and
protect her 11-week-old sister, plaintiff Cali McCuller. Plaintiffs allege that the
officers pointed their guns at Cierra as she held Cali, but the videos do not clearly
show this. The videos do show that the officers had their guns in hand as they initially
secured the apartment. The family was soon led to the living room where they were
seated for the duration of the search. The videos show that several minutes into the
search the officers were ordered to turn off their cameras, so the remainder of the
search was not recorded.
Plaintiffs allege that the search lasted nearly two hours. R 60 ¶ 92. They allege
that they remained handcuffed the entire time, except that Cierra and then Tate were

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permitted to hold baby Cali, one at a time. Plaintiffs allege that Defendants destroyed
various property in Christopher’s and Cierra’s bedrooms during the course of their
search. Defendants found nothing in the apartment that would corroborate the
confidential informant’s statement that provided the basis for the warrant.
Plaintiffs make their claims in the following eleven counts:
Count I by Plaintiff Cali for unnecessary force against the City of
Chicago, alleging individual defendant officers pointed their guns at her;
Count II by all Plaintiffs for an unlawful search, alleging an invalid
warrant, against defendants Niemoth, Cusimano, Hegewald, Bruno,
and Alvarez;
Count III by all Plaintiffs for an unlawful search, alleging unreasonable
manner of entry and search, against all individual defendants except
Alvarez;
Count IV by all Plaintiffs for false arrest and imprisonment against
defendants Weathersby, Miranda, Benavides, Niemoth, Cusimano, and
Bruno;
Count V by Christopher and Cierra Harbin for unconstitutional seizure
of property, against all individual defendants except Alvarez;
Count VI by all Plaintiffs for assault in violation of state law against
Weathersby, Miranda, Niemoth, Cusimano, Bruno, Arrington,
Carranza, Mulligan, and Sieber;
Count VII by all Plaintiffs for false arrest and false imprisonment in
violation of state law against Weathersby, Miranda, Benavides,
Niemoth, Cusimano, and Bruno;
Count VIII by all Plaintiffs for intentional infliction of emotional distress
in violation of state law against all individual defendants except
Alvarez;
Count IX by all Plaintiffs for trespass in violation of state law against
all individual defendants except Alvarez;

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Count X by all Plaintiffs for respondeat superior liability against the
City of Chicago for the individual defendants’ state law violations; and
Count XI by all Plaintiffs for indemnification by the City of Chicago
under state law.
Analysis
Defendants seek dismissal of all claims. They make five primary arguments:
(1) the videos contradict Plaintiffs’ claim that the officers pointed their guns at Cali;
(2) Cali was not sufficiently aware that guns were pointed at her, so she could not
have been “seized” for purposes of the Fourth Amendment and subjected to excessive
force; (3) the individual officers are entitled to qualified immunity for reliance on the
warrant; (4) the individual officers are entitled to qualified immunity for their
manner of entry and search; and (5) Plaintiffs have not alleged that Cali suffered
damages.
I.

Excessive Force (Count I)
A.

Plausibility

Plaintiffs claim that the City is liable for excessive force because the individual
officers pointed their guns at Cali. Defendants concede that a police officer pointing
a gun at a person who poses no threat can constitute excessive force. See Baird v.
Renbarger, 576 F.3d 340, 345 (7th Cir. 2009). But Plaintiffs do not dispute
Defendants’ contention that the videos do not show any of the individual officers
pointing their guns at Cali. For this reason, Defendants argue that the videos
“incontrovertibly contradict” Plaintiffs’ allegation that Cali had a gun pointed at her,
and so the excessive force claim should be dismissed. See Bogie, 705 F.3d at 609

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(holding that a video which “incontrovertibly contradicts” allegations is a sufficient
basis to dismiss claims that based on those allegations.)
Yet, Defendants also concede that the video leaves room for the “logical
possibility” that the officers pointed their guns at Cali. See R. 89 at 5. This concession
acknowledges that the videos only provide a few narrow visual perspectives of the
incident. None of the videos is trained on Cali for the entire relevant time period.
Indeed, Cali appears in only relatively small portions of the videos, much of which is
after the moments when a gun was allegedly pointed at her. And even when Cali
appears on a video, it is not always possible to discern whether a gun is being pointed
at her. For instance, the videos often do not reveal what the officer wearing the
camera is doing with their gun because the officer’s hands are out of the frame.
Additionally, the officers were moving quickly, and the cameras did not linger on
other officers for extended periods of time. Consequently, there appear to be multiple
gaps in the perspectives captured by the cameras. At bottom, if—as Defendants
concede—the videos leave open the possibility that a gun was pointed at Cali, then
the videos do not “incontrovertibly contradict” the allegations.
Defendants argue, however, that a “possible” allegation is insufficient to state
a claim because allegations must be plausible. See Iqbal, 556 U.S. at 678 (the
“plausibility standard . . . asks for more than a sheer possibility that a defendant has
acted unlawfully”). But just because Defendants have conceded that it is possible that
a gun was pointed at Cali, does not mean that the allegation must be characterized
as merely possible. Plaintiffs were present during the incident. They have personal

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knowledge of what happened. And they allege that officers pointed their guns at Cali.
The allegation that officers who broke into an apartment with guns drawn also
pointed those guns at the occupants they encountered is entirely plausible. Indeed,
the videos clearly show that the officers pointed their guns at Christopher. See Ex. M
(video) QH000011 at 04:03. Defendants argue that Plaintiffs “cannot show” that the
officers pointed their guns at Cali. R. 89 at 7 (emphasis added). But even though the
videos do not clearly show a gun pointed at Cali, Plaintiffs do not have a burden to
show or prove facts at this stage of the case. And the facts that are readily apparent
from the videos do not undermine the plausibility of Plaintiffs’ allegation that a gun
was pointed at Cali. Therefore, the Court rejects Defendants’ argument that Count I
should be dismissed based on the videos.
B.

Seizure

Defendants also argue that Count I should be dismissed because Plaintiffs do
not plausibly allege that Cali was seized. Excessive force is a form of unreasonable
seizure in violation of the Fourth Amendment. See Baird, 576 F.3d at 344. Generally,
the physical injury suffered by a victim of excessive force also constitutes the “seizure”
required to state the claim. However, use of force can also be excessive without
physical injury, such as when an officer points a gun at a person who poses no threat.
Id. A seizure also occurs in such circumstances because a reasonable person held at
gunpoint would not believe they were “free to leave” under the circumstances. See
Jacobs v. City of Chicago, 215 F.3d 758, 772 (7th Cir. 2000).

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Citing no authority, Defendants argue that Tate cannot state a claim for
excessive force on Cali’s behalf because an 11-week-old child is incapable of having a
reasonable belief about her freedom to leave. See R. 69 at 9. But the standard
addresses not what a particular plaintiff actually believed, but what a “reasonable
person” would believe under the circumstances. And the Seventh Circuit has found
that children, including infants, can state claims for illegal seizures, even though
their individual ability to comprehend the circumstances is not certain. See
Hernandez v. Foster, 657 F.3d 463, 474 (7th Cir. 2011) (15-month-old); Doe v. Heck,
327 F.3d 492, 510 (7th Cir. 2003) (11-year-old); see also Hernandez v. Foster, 2009 WL
1952777, at *4 (N.D. Ill. July 6, 2009) (“In this case, a 15-month-old child was
physically removed from his home at the direction of DCFS and separated from his
parents. Under these circumstances, no reasonable child would have felt free to
leave.”). Defendants cite no authority to the contrary. Therefore, the Court rejects
Defendants’ argument that Tate has not plausibly alleged that Cali was seized.
C.

Qualified Immunity

Defendants also argue that even if they did point their guns at Cali, they
reasonably believed that they were permitted to do so as part of an initial security
sweep, so they are entitled to qualified immunity. Defendants support their argument
by citing courts from outside the Seventh Circuit that found that momentarily
pointing guns at non-threatening individuals is permissible in the initial stages of
securing a space. See R. 69 at 7-8 (citing cases). However, even if this Court were to
find those cases persuasive, Defendants’ qualified immunity argument fails on the

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pleadings for much the same reason the Court rejected Defendants’ argument that
the video contradicted Plaintiffs’ allegations. There are simply too many gaps in
perspectives captured by the videos for the Court to find that the officers’ actions were
reasonable as a matter of law. “Too little is known about the circumstances in this
case to determine if, by pointing their weapons at the plaintiffs, the officers violated
the plaintiffs’ clearly established rights.” Atkins v. Hasan, 2015 WL 3862724, at *7
(N.D. Ill. June 22, 2015). “Even if, when first entering [the apartment] it was
reasonable for the officers to point their weapons . . . it does not necessarily follow
that any continued gun-pointing was appropriate.” Id. Discovery is necessary to fill
in the gaps in the videos, to determine both whether any individual officer pointed
their gun at Cali, and if so, whether that action was sufficiently unreasonable to deny
qualified immunity.
II.

The Search
A.

The Warrant (Counts II and IX)

Plaintiffs claim that the officers procured the warrant without probable cause.
To survive a motion to dismiss such a claim, a plaintiff must allege that “reasonably
well-trained officers in their positions should have known that the testimony or
affidavits they provided in support of the warrants would have failed to establish
probable cause, so that they should not have applied for the warrants in the first
place.” Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003). This
means that the officers “knowingly or intentionally or with a reckless disregard for
the truth, made false statements to the judicial officer, and that the false statements

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were necessary to the judicial officers’ determinations that probable cause existed for
the arrests.” Id. A ‘reckless disregard for the truth’ is demonstrated by showing that
the officers entertained serious doubts as to the truth of their statements, had obvious
reasons to doubt the accuracy of the information reported, or failed to inform the
judicial officer of facts they knew would negate probable cause.” Id. at 743.
Here, Plaintiffs have plausibly alleged that the officers had reason to doubt the
informant’s statement. This is because Plaintiffs allege that the informant’s
information turned out to be entirely wrong. This was not a case of an incorrect
address. Defendants searched the address and apartment the informant identified.
But “Drako” was not selling drugs out of it. A completely erroneous statement permits
the plausible inference that the officers should have known the statement was at least
not entirely correct. It is possible that the informant was simply mistaken or lying,
or that the officers had no reason to doubt the informant’s statement. But the
allegation that the informant was entirely wrong implies that there must have been
some obvious hole in the informant’s story that the officers should have noticed.
Discovery is necessary to determine whether that is true.
Plaintiffs do not directly allege that the officers had a reason to believe the
informant’s statement was false, but that is not surprising. Plaintiffs are not privy to
all of the officers’ communications with the informant. Although the affidavit that
was part of the warrant application is part of the pleadings here (because Plaintiffs
reference it in their complaint, and Defendants attached it to their motion), the
affidavit does not describe the officers’ relationship with the informant. The affidavit

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only provides what the officers told the judge the informant stated about the suspect
and his location. It does not relate what the officers knew about the informant, and
whether the information the officers knew about the informant should have caused
them to question the informant’s veracity. And conversely, it does not provide
whether the informant had proven reliable in the past. Without this knowledge,
Plaintiffs cannot directly allege that the officers should have known the informant’s
statement was insufficient to establish probable cause. Instead, Plaintiffs must rely
on inference from the alleged complete falsity of the informant’s statement.
Rather than directly alleging that the officers knew or should have known the
informant’s statement was false, Plaintiffs claim that the officers had an obligation
to independently corroborate the informant’s statement. As discussed, this is a
plausible claim in light of the complete inaccuracy of the informant’s statement.
Defendants argue, however, that the Seventh Circuit has not required police to
perform such independent corroboration to establish probable cause. This is true.
When an informant risks implicating himself in criminal activity and appears before
the judge issuing the warrant, the Seventh Circuit has affirmed warrants issued
without independent corroboration but confirmed only by the police traveling with
the informant to verify the target address. See Edwards v. Jolliff-Blake, 907 F.3d
1052, 1057 (7th Cir. 2018); United States v. Lloyd, 71 F.3d 1256, 1259-60 (7th Cir.
1995). The same can be said of the facts in the affidavit in this case, so the warrant
in this case was sufficient to establish probable cause.

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But that is not the relevant question at this point in the proceedings. Rather,
the question is whether Plaintiffs’ allegations plausibly allege that the officers had
reason to doubt the informant’s statement. The answer to that question requires
discovery into what the officers knew “at the time they applied for the warrant.” See
Edwards, 907 F.3d at 1061. And as discussed, the fact that the informant’s statement
was allegedly entirely inaccurate permits the plausible inference that the officers
knew information about the informant that should have caused them to doubt the
informant’s veracity. And with reason to doubt the informant’s veracity, the officers
should have undertaken independent verification of the informant’s statement, which
is what Plaintiffs claim.
A corollary to the rule that probable cause must be assessed according to “what
the officer knew at the time he sought the warrant” is that it is not relevant “how
things turned out in hindsight.” See Beauchamp, 320 F.3d at 743. Although Plaintiffs’
claim is based on allegation of “how things turned out”—i.e., the informant was
wrong—the Court’s reasoning is not properly characterized as “hindsight.” Hindsight
would be second-guessing the probable cause finding based on the facts as the officers
represented them at the time. That is not what is happening here. Rather, the totality
of the allegations permits the plausible inference that the facts were not as the
officers represented them at the time. Subsequent facts cannot be used to undermine
a probable cause finding based on what was known at the time, but subsequent facts
can be used to infer that the facts at the time were not what they seemed.

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Lastly, Defendants argue that case law affirming probable cause findings
based on informant statements with minimal corroboration establishes that the
officers who procured the warrant are entitled to qualified immunity. But again, the
relevant question here is not whether the affidavit established probable cause. It is
whether the officers knew the affidavit was false or had additional information not
reflected in the affidavit that would have undermined the probable cause
determination. In either circumstance, it is clearly established that procuring a
warrant in reckless disregard of that truth violates the Fourth Amendment. See
Beauchamp, 320 F.3d at 742-43 (citing Franks v. Delaware, 438 U.S. 154, 155-56
(1978)). Therefore, dismissal based on qualified immunity is not appropriate at this
point in the proceedings, and Defendants motion to dismiss Counts II (procuring
warrant without probable cause) and IX (trespass) is denied. 2
B.

Manner of Entry & Search

Plaintiffs also claim that Defendants’ manner of entry and search violated the
Fourth Amendment. The Fourth Amendment requires that officers act reasonably in
seeking entry to a home, in detaining the people in the home once they enter, and in
conducting the search. Plaintiffs claim that: (1) Defendants failed to wait enough time
after knocking before entering; (2) Defendants unreasonably used handcuffs and guns
in securing the scene; and (3) Defendants unreasonably damaged property during the
search.

Plaintiffs’ trespass claim is based on their allegation of unlawful entry with a
warrant issued without probable cause. Because that issue requires discovery, the
same is true for the trespass claim.

2

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1.

Knock and Announce (Count III)

“[O]fficers must wait a reasonable amount of time after announcing their
intention to serve a search warrant before attempting a forcible entry.” United States
v. Gillaum, 372 F.3d 848, 854 (7th Cir. 2004). “Whether police officers paused long
enough before admitting themselves into a home . . . entails a highly contextual
analysis, requiring examination of all the circumstances of the case.” United States
v. Leonard, 2000 WL 266489, at *2 (7th Cir. Mar. 8, 2000); see also Florek v. Village
of Mundelein, 649 F.3d 594, 603 n.2 (7th Cir. 2011) (“What is reasonable must be
determined under the particular factual situation presented.”). “[T]here is no brightline rule delineating the boundary between a reasonable and unreasonable amount
of time for officers to wait.” United States v. Espinoza, 256 F.3d 718, 722 (7th Cir.
2001). But in the case of a search warrant related to drug activity, “the Supreme
Court has suggested that the police need not hold off for more than 15 or 20 seconds.”
United States v. Collins, 510 F.3d 697, 699 (7th Cir. 2007) (citing United States v.
Banks, 540 U.S. 31, 37-38 and n. 5 (2003)). However, “the officers nonetheless may
simply ‘go straight in’ if the circumstances support a reasonable suspicion of
exigency.” Banks, 540 U.S. at 36.
Defendants contend that the videos show they waited six seconds after
knocking on Plaintiffs’ door before they broke in. Plaintiffs contend it was two
seconds. The Court’s count is somewhere in between. In any case, it was a much
shorter amount of time than is generally found to be reasonable.

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Defendants argue that exigent circumstances were present because
Christopher and Cierra had spotted the police from the balcony of the apartment the
police intended to search. But that argument is undermined by Plaintiffs’ allegation
that they offered to let the police into the building. If Plaintiffs were permitting the
police entry, there was no reason for forcible entry. 3
Besides being spotted from the balcony, the pleadings reveal no other reason
for Defendants to believe that exigent circumstances existed. Although discovery may
reveal that Defendants had reason to execute the search in accordance with the belief
that weapons would be present in the apartment, the informant’s statement gave no
such indication. Additionally, Plaintiffs argue that having failed to independently
corroborate the informant’s statements, Defendants should have executed the search
in accordance with the possibility that the informant was wrong. Plaintiffs were at
least entitled to a reasonable opportunity to: (1) “comply with the law and peaceably
permit officers to enter the residence”; (2) “avoid[] the destruction of property
occasioned by forcible entry”; and (3) “prepare themselves for entry by law
enforcement officers by, for example, pulling on clothes or getting out of bed.”
Espinoza, 256 F.3d at 723 (citing Richards, 520 U.S. at 393 n. 5; and Wilson, 514 U.S.
at 930-32).

Defendants do not argue that their entry into the building’s vestibule constituted
an “announcement” such that the time it took them to walk up the stairs should be
included in the time Plaintiffs were afforded in warning. This makes sense since
Plaintiffs have no expectation of privacy in the entryway area. See United States v.
Espinoza, 256 F.3d 718, 723 (7th Cir. 2001). And until the police knock on a specific
door, Plaintiffs could not know whether their apartment was the target of the search
and that they should be expected to open the door.

3

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According to Plaintiffs’ allegations and what is apparent from the video,
Defendants deprived Plaintiffs of these opportunities. Defendants broke down the
door as Tate was on her way to open it. Tate was still in her nightgown. Christopher
was forced to the floor at gunpoint. Cierra allegedly had guns pointed at her while
Cali was in her arms. Plaintiffs allege that these traumatic experiences could have
been avoided had Defendants been more patient and acted with due regard for the
possibility that they had the wrong apartment (which Plaintiffs allege is not an
uncommon occurrence when the Chicago Police execute search warrants) or for the
possibility that the occupants of the apartment would cooperate. Perhaps discovery
will reveal facts that justify Defendants’ conduct. But Plaintiffs have stated a claim
that Defendants’ manner of entry into the apartment was unreasonable and violated
the Fourth Amendment, and there is nothing on the videos clearly showing otherwise.
Defendants argue that they are entitled to qualified immunity for the manner
of their entry into the apartment. But as discussed, case law clearly establishes
Plaintiffs right to more time to answer the door under the circumstances as pled and
as depicted in the videos. A grant of qualified immunity on Plaintiffs’ claim that
Defendants manner of entry was unreasonable is not appropriate on the pleadings.
2.

Use of Guns and Handcuffs (Counts IV, VI, VII, and VIII)

Plaintiffs also claim that Defendants use of guns and handcuffs was
unreasonable. On the basis of this allegation, Plaintiffs make claims for: (1)
unreasonable search and seizure in violation of the Fourth Amendment; (2) false
arrest under state law; (3) assault under state law; and (4) intentional infliction of

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emotional distress under state law. Plaintiffs must plausibly allege unreasonable use
of guns or handcuffs to state these claims.
Defendants cite case law holding that it is reasonable to use guns to secure the
premises to be searched and to handcuff the occupants during the search. See R. 69
at 13-14; R. 89 at 15-17. But as Plaintiffs point out, use of handcuffs and guns—like
the time required to wait for entry—is analyzed for reasonableness under the
circumstances. See R. 83 at 25-27. Plaintiffs have plausibly alleged that they posed
no real threat to the officers and immediately indicated their willingness to comply
with the search. Whether Defendants use of guns and handcuffs in these
circumstances was reasonable is a fact intensive analysis not amenable to decision
prior to discovery. Qualified immunity is not appropriate for the same reason. Thus,
Defendants motions to dismiss Counts III (Fourth Amendment unreasonable search),
IV (Fourth Amendment false arrest and imprisonment), VI (assault), VII (state law
false arrest and imprisonment), and VIII (intentional infliction of emotional distress)
are denied.
3.

Property Destruction (Count V)

“[T]he Fourth and Fourteenth Amendments provide a remedy when a citizen’s
property is unreasonably damaged during a search.” Heft v. Moore, 351 F.3d 278, 282
(7th Cir. 2003) (“Excessive or unnecessary destruction of property in the course of a
search may violate the Fourth Amendment, even though the entry itself is lawful and
the fruits of the search are not subject to suppression.” (citing United States v.
Ramirez, 523 U.S. 65, 71 (1998))). The Supreme Court has held that “it is generally

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left to the discretion of the executing officers to determine the details of how best to
proceed with the performance of a search authorized by warrant.” Dalia v. United
States, 441 U.S. 238, 257 (1979). Yet “the manner in which a warrant is executed is
subject to later judicial review as to its reasonableness.” Id. at 258.
As discussed, Plaintiffs have plausibly alleged that it was unreasonable for
Defendants to break down the door. Plaintiffs also allege that the officers broke a flat
screen television by knocking it to the floor and ruined clothing by throwing it on the
floor and spilling liquids on it. It is well-settled that the mess and damage that can
result from a search for narcotics is generally reasonable. See Dalia, 441 U.S. at 258
(“officers executing search warrants on occasion must damage property in order to
perform their duty”); see also Weeks v. City of Chicago, 2014 WL 3865852, at *6 (N.D.
Ill. Aug. 6, 2014) (“The fact that the contents of the room were left in a pile and some
cereal spilled on the counter does not demonstrate that [the officers’] intrusion went
beyond what was necessary.”). And officers are entitled to open drawers and other
containers and even cut open walls and cushions when searching for drugs. See
Washington v. Godinez, 1996 WL 599055, at *2 (N.D. Ill. Oct. 17, 1996) (officer acted
reasonably when he removed ceiling tiles, tore insulation out of the ceiling, and
removed and destroyed frozen food from a freezer in search of drugs). But it is not
clear that ruining the television and clothing was necessary to execute the search.
Again, the reasonableness of those actions will have to be judged in light of facts
learned in discovery. Therefore, Defendants motion to dismiss Count V is denied.

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III.

Cali’s Damages
Defendants characterize Plaintiffs’ claim that Cali suffered emotional damages

as “blatant speculation regarding an eleven-week old infant’s psychological and
emotional state fails to meet the pleading requirements” for Rule 12(b)(6). See R. 69.
at 15. Maybe it is true that an 11-week-old infant cannot suffer legally cognizable
emotional damages. But Plaintiffs have alleged that she did. See R. 60 ¶¶ 109, 112,
118, 121-123. Whether or not these allegations are true is a factual question that
requires discovery.
Conclusion
Therefore, Defendants’ motion to dismiss [69] is denied. 4 The parties should
meet and confer regarding a discovery schedule in advance of the status hearing set
for November 20, 2020.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: November 16, 2020

Defendants make a number of arguments that certain individual defendants should
be dismissed from certain Counts regarding the reasonableness of the search because
they did not participate in all aspects of the search. All individual defendants,
however, participated in the entry into the apartment and will remain in the case for
that reason. Who did what during the search will be sorted out on summary judgment
if necessary.

4

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