thompson v. buell summary judgment

8/12/2019 Thompson v. Buell Summary Judgment

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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

D.Z., by his Next Friend, )A. THOMPSON )

) Plaintiff, ) Case No. 12 C 7580

)v. ) Magistrate Judge Daniel G. Martin

)

MARK BUELL ))

Defendant. )

ORDER

Defendants Motion for Summary Judgment [76] is granted.

STATEMENT

Plaintiff D.Z., a minor, brought this action against the City of Evanston and Evanston

Police Officer Mark Buell by his Next Friend, A. Thompson. D.Z. alleges that Officer Buell

violated his Fourth Amendment rights on August 30, 2012, when Buell detained him in

connection with a reported burglary. The Fourth Amendment allegations include claims for

unreasonable search and seizure and for false arrest.1 D.Z. also alleges various state law

claims. Plaintiff originally raised a failure to train claim against the City of Evanston

pursuant to Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). The Monellclaim was

later dismissed. This case was first assigned to District Judge Marvin Aspen. The parties

1 Count I in Plaintiffs Complaint brings both of these allegations under the FourthAmendment, though earlier portions of the Complaint cite both the Fourth and theFourteenth Amendments. Under some circumstances, the Fourteenth Amendment can bea basis for a due process claim when a plaintiff has been improperly detained. The Courtconsiders Plaintiffs claim as brought under the Fourth Amendment, as Count I does notcite the Fourteenth Amendment.

Case: 1:12-cv-07580 Document #: 157 Filed: 02/26/14 Page 1 of 33 PageID #:3118


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later consented to have this Court conduct all proceedings, including an entry of final

judgment. 28 U.S.C. 636(e); N.D. Ill. R. 73.1(c). Officer Buell now asks the Court to

enter summary judgment on his behalf.

A. Factual Background

1. The Local Rule 56.1 Submissions

Local Rule 56.1 requires the party moving for summary judgment to submit a

statement of material facts (SOF) that it believes are uncontested. The submission must

include citations to the affidavits, parts of the record, and other supporting materials relied

upon to support the facts set forth in [each] paragraph. N.D. Ill. R. 56.1(a). The Rule

stresses that only material facts should be included. N.D. Ill. R. 56.1(a)(3). The non-

moving party must then file a response to that statement, together with similar evidentiary

support that the non-moving party believes demonstrates the existence of a material issue

of fact. N.D. Ill. R. 56.1(b)(3)(B). The non-moving party may also file a statement of

additional facts. N.D. Ill. R. 56.1(b)(3)(C). Courts are entitled to expect strict compliance

with these rules. See Shaffer v. Am. Med. Assn, 662 F.3d 439, 442 (7thCir. 2011); Cracco

v. Vitran Express, Inc., 559 F.3d 625, 632 (7thCir. 2009).

Each party in this case raises serious objections to the others Rule 56.1

submissions. Defendant claims that Plaintiff has attempted to distort the record by making

unsupported arguments in his Rule 56.1(b)(3)(B) response and by addressing what are

largely non-material fact issues. (Reply at 3-4). Plaintiff goes even farther by alleging that

Defendants statement of facts creates an absolute distortion of the record, contains

statements that are absolutely false, and generally shows gross shortcomings and [a]

mischaracterization of events. (Pls. SOF at 17, 20, 27). Plaintiff also accuses

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Defendant and/or his City of Evanston Police partner Russell Brown of lying, and suggests

that Buell may have submitted an untruthful sworn declaration prepared with the help of his

counsel. (Pls. SOF at 20, 21).

After carefully examining all of the citations included in both parties Local Rule 56.1

submissions, the Court finds that Defendant has not acted with an improper motive. It is

true that Buell relies heavily on his own sworn declaration. But that is not inherently

problematic, despite Plaintiffs claim that a Summary Judgment affidavit is not a Homework

assignment or a Re-Do event. (Pls. SOF at 27). A party may rely on a self-serving

affidavit in summary judgment proceedings as long as the record supports the affiants

statements. See Kaba v. Stepp, 458 F.3d 678, 681 (7thCir. 2006); Buie v. Quad/Graphics,

Inc., 366 F.3d 496, 504 (7thCir. 2004).

Conclusory statements, or declarations that contradict prior deposition testimony,

do not support a partys affidavit. Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th

Cir. 2004); Minn. Elevator, Inc. v. Imperial Elevator Servs., Inc., 758 F. Supp.2d 533, 539

(N.D. Ill. 2010). Plaintiff earlier filed motions to strike the declarations of Buell, Officer

Russell Brown, and Officer Amy Golubski on these grounds. Those motions were denied

because Plaintiff did not show any material conflict between the declarations and these

affiants prior deposition testimony or other sworn statements. (Docs. 139, 153). The

broader evidentiary record also does not conflict with Buells statement, except where

specifically noted below. Plaintiff has not presented any reason for finding that Defendant

has lied or attempted to mislead the Court. Nothing suggests that Defendants counsel

played an improper role in preparing Buells declaration.

Buells complaints about Plaintiffs Rule 56.1 filings present a more complex set of

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issues. The Court agrees that the submissions do not meet the exacting obligation[s] of

Local Rule 56.1.2 Waldridge v. Am. Hoeschst Corp., 24 F.3d 918, 922 (7thCir. 1994). See

also Cady v. Sheahan, 467 F.3d 1057, 1060 (7thCir. 2006); De v. City of Chicago, 912 F.

Supp.2d 709, 712 (N.D. Ill. 2012). Local Rule 56.1 is not a mere formality. Nor is it an

opportunity to argue a partys case or to present evidentiary-based discussions that are

more appropriate to a partys brief. Instead, the rule is designed to conserve a courts time

and resources by identifying and organizing the evidence. See Bordelon v. Chicago Sch.

Reform Bd. of Trustees, 233 F.3d 524, 527 (7thCir. 2000).

District Courts have broad discretion to require that parties strictly comply with Local

Rule 56.1. Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371,

382 n.2 (7thCir. 2008). A partys failure to do so can have serious consequences. At the

extreme end, a court may enter summary judgment when the non-moving party has not

submitted a fact statement in the manner called for by the Local Rule. Waldridge, 24 F.3d

at 922. A court can also strike the non-moving partys response. See Hancock v.

Broullard, 2011 WL 5141510, at *4 (N.D. Ill. Oct. 25, 2011).

Although Plaintiffs submissions do not always comply with Local Rule 56.1, striking

his filings or entering summary judgment on that ground would be counterproductive. The

summary judgment record in this case is long and, as Defendant complained in an earlier

2 A number of the citations that Plaintiff relies on in his statements do not contain

the information that he asserts. (e.g.Ex. 31 in Pls. SOF 20; Exs. 1:1, 10, 56 et al.in 7(B); Ex. 15 in 7(E); Ex. 15 in 27). Many issues are not material. (e.g.Pls. SOF 9,19; Pl.s Add. SOF, passim). Plaintiff also relies on statements that do not address the factallegations that Defendant makes, refers to missing evidence, and speculates on themeaning of the record. (Ex. 75 in Pls. SOF 20; 25; and Exs. 18, 35, 45 in Pls. SOF 29). Page references to the cited exhibits are frequently missing. (e.g.Ex. 31 in Pls. SOF

26; Exs. 24, 24A, 25, 54 in 29).

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filing, at times unclear. Plaintiffs Rule 56.1 filings provide an additional tool for navigating

this record and bringing order to the evidentiary submissions. In addition, some of

Plaintiffs submissions comply with the Local Rule. For these reasons, the Court has fully

considered all of Plaintiffs claims and citations in his Rule 56.1(b)(3)(B) and 56.1(b)(3)(C)

filings in assessing the facts of this case. All of the evidence has been construed in the

light most favorable to Plaintiff, as Fed. R. Civ. P. 56 requires.

2. The Underlying Events

On the morning of August 31, 2012, a resident in Evanston, Illinois reported that she

had observed a burglar in her home. She described the intruder to a police dispatcher as

a young boy, African-American, [wearing] cargo khaki shorts, dark brown T-shirt or [a] dark

shirt. (Defs. Ex. E). She also told the dispatcher that she had observed the young man

running northbound in an alley. (Id.). The individual who took the call then issued a

description of the suspect to police on the dispatch radio. She described him as a black

male, probably in his teens, wearing a dark shirt, and khaki cargo shorts. (Id. at 1:18).

Officer Mark Buell was one of the policemen who heard the broadcast. He was

accompanied in his car by fellow officer Russell Brown. One of the officers noticed an

individual whom he believed matched the description of the suspect on a bicycle.3This fact

was then radioed to the police dispatcher.4 (Defs. Ex. E at 3:38; Ex. B at 5-7; Ex. C at

3 Buell and Officer Brown claim that it was Brown. (Defs. Ex. A at 6; Ex. B at

6). Plaintiff argues that it was Buell himself, but his statement of facts fails to provide anyevidence that disputes the officers statements. (Pls. SOF at 9).

4 Defendant claims that Brown saw the suspect and made the radio call. Plaintiffargues at length that it was Buell and that the distinction creates a jury issue. (Pls. SOFat 10; Resp. at 7-9). The Court disagrees. The specific identify of the officer is not amaterial issue of fact for summary judgment purposes.

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5-7). The officers were not able to catch up to the cyclist. Shortly thereafter, another

officer requested a repeat of the suspects description. The radio dispatcher sent out a

statement that the person in question was a male, black juvenile with a dark shirt and

khaki, uh, shorts or pants, cargo pants. (Defs. Ex. E at 4:07).

In the meantime, another Evanston police officer had stopped an individual at the

intersection of Oakton and Florence Streets. (Defs. Ex. B at 10). Buell radioed in that

the victim should be brought to that location for a show up. (Id.; Defs. Ex. E at 6:30).

When the victim arrived, however, she stated that the person who had been stopped was

not the intruder she saw in her home.

Officer Amy Golubski also radioed in that she had seen a suspect who was riding

his bicycle near Chute Middle School. She described him as riding a blue bike and wearing

cargo shorts [unidentifiable] dark navy blue or black . . . [and] a light gray tank top, blue

cap. (Pls. Ex. 33; Defs. Ex. E at 7:00, 7:30). The cyclist turned out to be Plaintiff. At the

time, D.Z. was a 13 year old African-American youth, approximately five feet and six inches

tall, and wearing navy blue cargo pants with a gray shirt. (Defs. Ex. D at 81, 106-07).

Golubski was then directed to put a stop on the individual. She exited her vehicle and

pursued D.Z. on foot. (Doc. 130, Ex. 1 at 10). Officer Golubski was unable to catch up

with the cyclist, whom both sides concede was not aware that she was pursuing him. Buell,

however, did not know at the time that D.Z. was not trying to evade Golubski. According

to Buell, he saw Officer Golubski running back to her patrol car after she radioed that she

was unable to catch the suspect.5 (Defs. Ex. B at 13).

5 Plaintiff vehemently disputes this claim, in part, because Buell states that he sawboth Golubski and another officer running back to her car. (Pls. SOF at 20). Plaintiff

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Officer Buell then attempted to catch the suspect by turning down another street.

He spotted Plaintiff riding his bicycle and turning into a driveway that Buell later learned

was D.Z.s own residence. (Id. at 14-16). The home was between 0.4 and 0.5 miles

from the victims home. Buell sent out a radio dispatch that the suspect was cutting

through the yards. (Defs. Ex. E at 7:55). Buell stopped his vehicle and pursued D.Z. on

foot up his driveway after Plaintiff got off his bike. A gate divided the driveway from the

homes backyard. D.Z. allegedly placed his hands on it. Buell claims that this action led

him to conclude that Plaintiff was attempting to flee. The officer ordered him to stop, D.Z.

promptly complied, and Buell placed him in handcuffs. (Defs Ex. B at 17-18; Ex. C at

16-17).

While these events were proceeding, a third description of the suspect was

broadcast that was more specific than the earlier ones: black T-shirt, dark cargo shorts,

no hat, skinny, tall probably six feet, high school age. (Defs. Ex. E at 8:00). Unlike the first

two broadcasts, however, no officer responded to this police radio dispatch. Officer Buell

took D.Z. to the front of the driveway and radioed for the burglary victim to be brought to

the scene for a second show up. She arrived no more than ten minutes later and stated

that D.Z. was not the intruder. Plaintiff was immediately released.

B. Legal Standard

1. Summary Judgment

claims that Buell has lied under oath by creating a mystery officer in the secondpoliceman to evade liability. No evidence supports this contention. Plaintiffs reliance onExhibits 31 and 75 is unavailing. After carefully examining all of the evidence that Plaintiffcites, the Court finds that nothing disputes Buells claim to have seen Golubski herselfrunning back to her car. The specific identity of the second officer is not material to theFourth Amendment issues.

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Summary judgment is warranted if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact. Fed. R. Civ. P. 56(c); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). Such a fact issue exists only where a rational trier

of fact could find for the nonmoving party. Id. at 324. The evidence, together with all

reasonable inferences that can be drawn from it, must be viewed in the light most favorable

to the nonmoving party. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7thCir.

2000).

The nonmoving party cannot overcome a summary judgment motion by relying on

unsubstantiated facts or by resting on its pleadings. See Hemsworth v. Quotesmith.Com,

Inc., 476 F.3d 487, 490 (7thCir. 2007). Instead, the party that bears the burden of proof on

an issue must demonstrate by means of admissible evidence that a genuine issue of

material fact exists on a particular issue that requires a trial. Id. A court neither weighs

conflicting evidence nor resolves factual disputes in deciding whether summary judgment

is appropriate. Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1014 (7thCir.

1996).

2. Qualified Immunity

Qualified immunity protects public officials from liability for damages if their actions

did not violate clearly established rights of which a reasonable person would have known.

Catlin v. City of Wheaton, 574 F.3d 361, 365 (7thCir. 2009) (citations omitted). The

doctrine is designed to protect all but the plainly incompetent or those who knowingly

violate the law. Malley v. Briggs, 475 U.S. 335, 341 (1986). Two questions are involved:

(1) whether the facts, taken in the light most favorable to the plaintiff, show that the

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defendant violated a constitutional right; and (2) whether that constitutional right was clearly

established at the time of the alleged violation. Wheeler v. Lawson, 539 F.3d 629, 639 (7th

Cir. 2008) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The plaintiff bears the burden

of proof to show both elements of this test once a defendant raises immunity as an

affirmative defense. Purvis v. Oest, 614 F.3d 713, 717 (7thCir. 2010); Eversole v. Steele,

59 F.3d 710, 717 (7thCir. 1995).

The question of whether an official is immune from suit is separate from the merits

of a plaintiffs underlying allegation. Fleming v. Livingston County, Ill., 674 F.3d 874, 879

(7

th

Cir. 2012); Hernandez v. Cook County Sheriffs Office, 634 F.3d 906, 912 n.8 (7

th

Cir.

2011) (A grant of qualified immunity is distinct from a victory on the merits, in that qualified

immunity recognizes a right not to litigate.). In the context of a false arrest or false

imprisonment allegation, this means that an officer is entitled to qualified immunity if

arguable probable cause exists for detaining the plaintiff. That standard is met when a

reasonable officer faced with the same facts and knowledge as the defendant couldhave

reasonably believed that probable cause existed in light of well-established law. Fleming,

674 F.3d at 880 (internal quote and citation omitted). Thus, an officer is immune from suit

if he reasonably, albeit mistakenly, believed that he had probable cause to arrest the

plaintiff. See McComas v. Brickley, 673 F.3d 722, 725 (7thCir. 2012); see also Wollin v.

Gondert, 192 F.3d 616, 621 (7thCir. 1999).

C. Discussion

1. The Fourth Amendment Issues

Defendant argues that he is entitled to qualified immunity concerning the Fourth

Amendment claims stemming from the August 15, 2012 detention. Neither party disputes

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that Plaintiffs Fourth Amendment rights were well established at the time of the incident.

The only question is whether Officer Buell violated those rights. Both parties divide that

analysis into whether Buell had reasonable suspicion to stop Plaintiff, and the separate

question of whether he had probable cause to arrest him (assuming that the initial stop

evolved into a custodial arrest). The Court follows the parties preference in dividing the

facts between the initial stop under Terry v. Ohio, 392 U.S. 1 (1968), and the handcuffing

event that immediately followed.

a. Reasonable Suspicion

An officer can stop a suspect if he has a reasonable suspicion that criminal activity

has occurred or is about to take place. United States v. Booker, 579 F.3d 835, 838 (7thCir.

2009). This requires more than a hunch but less than probable cause and considerably

less than preponderance of the evidence. Gentry v. Sevier, 597 F.3d 838, 845 (7thCir.

2010). The standard is objective: would the facts available to the officer at the moment

of the seizure or the search warrant a man of reasonable caution in the belief that the

action taken was appropriate? United States v. Tilmon, 19 F.3d 1221, 1224 (7thCir. 1994).

An officers subjective intent plays no role in this analysis. United States v. Barnett, 505

F.3d 637, 640 (7thCir. 2007); United States v. Bullock, 632 F.3d 1004, 1012 (7thCir. 2011).

Buell argues that he had reasonable suspicion to stop Plaintiff because he

sufficiently matched the first two descriptions that were broadcast on the dispatch radio.

Plaintiff disputes that claim on grounds that are not always easily separated from one

another. A central argument, however, is that a detailed description of the suspect was

eventually broadcast to the searching officers that was incompatible with D.Z.s

appearance. This description identified a medium complexion, black male, 17-18, 6'0 to

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6'2", 160-180 pds, juvenile, brown Tee shirt, dark tan cargo shorts, black hair, short hair up

to , no facial hair, Brown eyes, thin with no body marks. (Pls. SOF at 7(c) & (d)).

Plaintiff argues that no officer could have reasonably believed that D.Z. matched this

description, which identified someone older, heavier, and taller than Plaintiff.

Plaintiffs extensive reliance on this description is misplaced. Contrary to his

assumption, the evidence plainly shows that it was never broadcast. The dispatch tape,

for example, does not contain the identification in any of the radio flash reports sent out to

Buell or any other officer. (Defs. Ex. E). The identification that Plaintiff relies on is found

in the victims Police Incident Report that she gave several hours afterD.Z. was detained

and released. (Pls. Ex. 1). Plaintiff alleges that the report states that this detailed

description was part of the earlier radio broadcasts. However, the report is silent on this

issue.

The only identifications that Buell clearly heard were the first two that were described

above. Plaintiff claims that these earlier broadcasts were too vague for Buell to have had

cause to detain him, or anyone else for that matter. D.Z. points out that the City of

Evanston has a substantial African-American population. Citing the Ninth Circuits decision

in Choi v. Gaston, 220 F.3d 1010 (9thCir. 2000), Plaintiff argues that Buell could not detain

anyone based on the descriptions he received because Evanston was buzzing with

children who fit the initial description, including an array of children with different skin

complexions that varied from light to medium to dark tones.

The Court finds this reasoning unpersuasive. Choidoes not address a situation in

which the police detained a suspect based on an overly vague identification. The

description that was given to officers in that case identified a Vietnamese man by name

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(Phu Nguyen), age, weight, and height. The problem in Choiarose from the fact that the

officers ignored this specific description to look in broad terms for an Oriental. They

eventually detained a Korean man whose age and physical appearance varied significantly

from the age, weight, height, and identity of the suspect who had been described to the

officers. Given the relative specificity of the given description, the Ninth Circuit found that

an inappropriate ethnic generalization was the only plausible explanation for the fact that

a Korean in his thirties, short and slim, was confused with a Vietnamese teenager, who

was taller and heavier. Choi, 220 F.3d at 1016.

Those facts do not apply to this case. Plaintiff does not even argue that Buell drew

improper generalizations from the description he received. Certainly, the evidence would

not support such a claim. The initial broadcast alerted the Evanston police officers to a

black male, probably in his teens, wearing a dark shirt, and khaki cargo shorts. That

contains five specific identifiers race, gender, age, shirt color, and the type of pants.

Plaintiff met all of these to some degree or other: he was African-American, male, in his

teens, had a gray shirt, and was wearing cargo shorts. The more important question in this

case is whether the description that Buell received was specific enough for him to have had

reasonable suspicion to stop D.Z. Choi does not address the sufficiency of the

identification that was given to the arresting officers.

Unfortunately, neither party in this case has fully addressed the adequacy of the

identification or provided relevant case authorities from this circuit. Courts have reached

varying conclusions about how specific a suspects description must be before an officer

has reasonable suspicion to initiate a stop. At a minimum, a description must not be so

general that it would allow officers to stop an overly broad category of persons. See Reid

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v. Georgia, 448 U.S. 438, 441 (1980); United States v. Hudson, 405 F.3d 425, 439 (6thCir.

2005). This means that a description of race and gender alone will rarely provide

reasonable suspicion justifying a police search and seizure. Brown v. City of Oneonta,

N.Y., 221 F.3d 329, 334 (2d Cir. 2000). SeealsoUnited States v. Brown, 448 F.3d 239,

247-48 (3d Cir. 2006) (finding the description of African-American males between 15 and

20 years of age, wearing dark, hooded sweatshirts and running south on 22ndStreet, where

one male was 5'8" and other was 6' to be too general); United States v. Jones, 619 F.2d

494, 497-98 (5thCir. 1980) (rejecting the description of a black male, 5 feet 6 inches to 5

feet 9 inches tall and weighing between 150 and 180 pounds, with a medium afro hair style,

who was wearing jeans and a long denim jacket); United States v. Moore, F. Supp.2d

2013 WL 5739006, at *3 (E.D. Wis. Oct. 22, 2013) (finding the description of a black

male in dark clothing to be too vague).

Based on these cases, the initial description that went out to the officers in this case

raises some concerns. It was certainly less specific than those given in Jonesand Brown.

That said, it does contain a number of identifying features about the suspects age, weight,

and clothing. Buell claims that these details were sufficient because the police are not

required to have a minute description of a suspect before stopping him. Plaintiff is largely

silent on that issue.

The Court does not believe that the description was too broad for police officers to

have stopped a suspect who matched all the criteria that the victim identified only minutes

earlier. But even if it were, that does not necessarily mean, at least standing alone, that

Buell did not have reasonable suspicion to stop D.Z. The question of whether reasonable

suspicion exists goes beyond a suspects description to include the full range of

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circumstances that the officer faced. See United States v. Clarkson, 551 F.3d 1196, 1202

(10th Cir. 2009). The reasonableness of a stop must be seen in light of all the

circumstances that an officer knew at the time. Bullock, 632 F.3d at 1012; see also United

States v. Brown, 500 F.3d 48, 55 (1stCir. 2007) (Although vague or ubiquitous descriptions

may raise Fourth Amendment concerns . . . everything depends on context.). Even

otherwise innocent behavior which Plaintiff was engaged in here can be considered in

deciding if reasonable suspicion existed to stop a suspect. United States v. Lenoir, 318

F.3d 725, 729 (7thCir. 2003).

One starting point is United States v. Broomfield, 417 F.3d 654 (7

th

Cir. 2005). In

that case, a suspect was described as a black man wearing dark clothing and brandishing

a silver-colored pistol. Id. An officer stopped a black man, at night, in dark clothing, and

less than one mile from the crime scene. The Seventh Circuit disagreed with the District

Court that a seizure actually took place when the man was first stopped. In dicta, however,

the Court found that, even if the Fourth Amendment had been implicated at that moment,

the police would have had reasonable suspicion to stop the individual. The suspect was

close in time and space to the crime scene; it was night; and few other people were out.

See id. at 655 (It would be different had it been Lagos at high noon.). Importantly, one

of the supporting factors was that the individual met the suspects description, even though

the identification itself lacked specificity.6 Id.

As Broomfield demonstrates, reasonable suspicion can exist even when the

suspects description is not specific enough to support that finding on its own. In an

6 Bloomfieldalso involved an arrest issue that is not relevant here.

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The Court concludes that a reasonable officer could have believed at the time of the

incident that Plaintiff was being evasive. See Wheeler, 539 F.3d at 639 (noting that

qualified immunity provides ample room for mistaken judgments).

Defendant was also mistaken that Plaintiff was being evasive when he turned into

his own driveway. However, Buell clearly believed at the time that D.Z. was acting

suspiciously because the officer sent out a broadcast that Plaintiff was cutting through the

yards. (Defs. Ex. E at 7:50). Given that Buell did not know that D.Z. lived at the location,

that was a reasonable conclusion under the circumstances.

The stop also took place only 0.4 to 0.5 miles from the victims home, and

approximately seven minutes after the first description was broadcast. (Pls. Ex. 10 at EV

310, 316). See Lenoir, 318 F.3d at 729; United States v. Goodrich, 450 F.3d 552, 563 (3d

Cir. 2006) (both explaining that a suspects temporal and geographic proximity to a crime

scene can support the reasonableness of an officers suspicion). Indeed, the first

description went out to officers while the victim was still on the phone with the police

dispatcher; the second description was heard by Buell as the search was underway. This

is not a case, therefore, where time meaningfully separates the description and the

detention. Buell was required to act almost simultaneously with the flash reports. And

despite Plaintiffs claim that the area was buzzing with young people, he has not cited any

evidence to show that Buell saw other children of any race during the short period of time

that elapsed in this case. See Goodrich, 450 F.3d at 563 (stating that the number of

persons in the area of the stop is relevant). Indeed, D.Z. does not claim differently in his

own declaration. (Pls. Ex. 25).

Plaintiff has claimed throughout this case that Buell could not have had reasonable

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Racial profiling is generally understood to mean the improper use of race as a basis for

taking law enforcement action. Chavez v. Ill. State Police, 251 F.3d 612, 620 (7thCir.

2001). Such claims are ordinarily brought under the Fourteenth Amendments Equal

Protection Clause. See id.; Maryland State Conference of NAACP Branches v. Maryland

State Police, 454 F. Supp.2d 339, 347 (D. Md. 2006) (Stops and searches based on such

considerations as race . . . are precluded by the Equal Protection Clause of the 14 th

Amendment.); Chriswell v. Village of Oak Lawn, 2013 WL 5903417, at *11 (N.D. Ill. Nov.

4, 2013). Plaintiff has not invoked the Equal Protection Clause. He cannot now urge the

Court to find that Buell engaged in prohibited racial profiling, especially as his Complaint

does not make that allegation in Count I.

Plaintiffs race claims appear to allege that (1) the description that Buell received

was so general that he could have detained any African-American youth he saw that day,

or (2) Buell was not permitted to take race into account when searching for the suspect.

The Court rejects the first of these claims for the reasons discussed above. As for the

second, an officer is never permitted to stop a suspect based solely on his race. That

would be tantamount to racial profiling. But an officer is not prohibited from considering

race in all circumstances. Many courts have found that race can be a legitimate factor

when there are other individualized reasons for stopping a suspect. See United States v.

Montero-Camargo, 208 F.3d 1122, 1134 n.22 (9th Cir. 2000) (en banc) (Hispanic

appearance, or any other racial or ethnic appearance, including Caucasian, may be

considered when the suspected perpetrator of a specific offense has been identified as

having such an appearance.); Floyd v. City of New York, F. Supp.2d , 2013 WL

4046209, at *6 (S.D.N.Y. Aug. 12, 2013) ([A] persons race may be important if it fits the

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description of a particular crime suspect.); Cherry v. Washington County Sheriffs Dept.,

2012 WL 2525637, at *5 (E.D. Wis. June 29, 2012) ([T]here is nothing wrong with using

a suspects race as a factor in describing him to the police, or in police relying on the

persons race in determining whether he fits the description of the suspect.).

Plaintiff links his race-based claims to a variety of pre-seizure events that take up

most of his brief. It is not clear if Plaintiff is arguing that the totality of the circumstances

deprived Buell of reasonable suspicion, that the pre-seizure events were themselves

violations of the Fourth Amendment, or both. The Court notes, however, that D.Z.

describes the pursuit that Buell set into motion as an unconstitutional racial profiling jaunt

[ ]. (Resp. at 8). This suggests that Plaintiff is making a constitutional attack on the events

themselves that led up to his detention.

Such an attack is not well founded. Pre-seizure events are important to deciding if

reasonable suspicion exists to stop a suspect. However, such events are not themselves

subject to a Fourth Amendment analysis. Carter v. Buscher, 973 F.2d 1328, 1332 (7thCir.

1992); see also Jackson, 160 Fed.Appx. at 541 (The Fourth Amendment is not implicated

until a person is actually stopped by police.) (citing Terry, 392 U.S. at 16-17). Courts have

been very clear that the Fourth Amendment does not ordinarily apply to the search that

leads up to a seizure. See County of Sacramento v. Lewis, 523 U.S. 833, 842-43 (1998);

Brower v. County of Inyo, 489 U.S. 593, 595-96 (1989); Steen v. Myers, 486 F.3d 1017,

1021 (7thCir. 2007). [A] person is seized only when, by means of physical force or a

show of authority, his freedom of movement is restrained. Only when such restraint is

imposed is there any foundation whatever for invoking constitutional safeguard. United

States v. Mendenhall, 446 U.S. 544, 552-53 (1980). That means that the Fourth

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Amendment was first implicated in this case when Plaintiff was actually stopped by Buell

in his driveway, not when Officer Brown (or even Buell, as D.Z. claims) issued a flash report

that someone on a bike could be a suspect.

If Plaintiff is arguing that Buells pre-seizure behavior created the very circumstances

that support reasonable suspicion, Plaintiff has failed to draw a link from the evidence to

his conclusion. Plaintiff claims that the police fatally misdirected the officers search for a

suspect when Officer Brown first radioed in that he may have spotted a suspect on a

bicycle. According to D.Z., Buell and the officers were strictly limited to looking for

someone who was traveling on foot. Plaintiff has not cited any evidence to support that

allegation. The victim initially told the emergency dispatcher that she had seen the suspect

running away from her house down an alley. But the record does not indicate that the

dispatcher communicated that fact to the officers. The dispatch tape shows that the

dispatcher took the callers description, and then initiated a separate flash outlook to

officers that did not describe in any way how the suspect was traveling.

Plaintiff has also argued at length that it is crucial to distinguish who (and he claims

it was Buell) told Officer Golubski to put a stop on D.Z. when she stated on the radio that

she had spotted someone on a bike who matched the suspects description. He now

claims that this fact is so important that the existence of qualified immunity rests on this and

the bike issue. (Resp. at 4). Plaintiff also argues that it is important to distinguish between

whether the unknown officer commanded Golubski to act or merely requested her to do

so. Buell has testified under oath that the voice on the dispatch tape was someone other

than himself. (Defs. Ex. B at 9). Golubski herself does not state that it was Buell. (Doc.

130, Ex. 1 at 9).

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Several problems arise from Plaintiffs reasoning on this issue. He claims that the

Court must assume that the voice was Buells because the Court is obligated to construe

all facts in D.Z.s favor. But Plaintiff has not presented any relevant facts for the Court to

construe. In his response, Plaintiff engages in a discussion about an officer known as

Detective Bush. Although D.Z. explains little about who this is, he claims that Buell stated

at some point in this case that the voice on the radio really belonged to Bush. Plaintiff does

not cite the record to support that allegation and, equally important, he does not explain

why it is even relevant. (Resp. at 13). D.Z. only argues at some length that the voice could

nothave been Detective Bushs a claim that seems to be suggesting once more that

Buell has somehow lied throughout this case. The Court earlier rejected Plaintiffs motion

to strike Buells declaration on that ground, and it will not revisit the issue here.

Even if it was Buell who made the radio comment, Plaintiffs brief does not explain

why that fact is relevant to Buells claim of qualified immunity. Plaintiffs Rule 56.1

submission is also unhelpful. It claims that, at the time of the radio message to Golubski,

Detective Bush was with the victim and knew that the real suspect was a black male,

medium complexion, 17 to 18 years-old, 6'1 to 6'1, 160 to 180 pounds, thin, no facial hair,

who fled on foot. (Pls. SOF at 17). That could only be relevant if Buell had received this

updated description. As he did not, the question of what the victim may have told Detective

Bush is immaterial to deciding whether Buell had reasonable suspicion to stop D.Z.

For these reasons, the Court finds that Buell had reasonable suspicion to initiate the

Terrystop of D.Z. Even if he did not, however, the circumstances present in this case still

entitle Buell to qualified immunity on the issue. An officer can act reasonably for qualified

immunity purposes even if reasonable suspicion did not exist to make a Terrystop. See

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id.; Sniderv. Pekny, 899 F. Supp.2d 798, 811-12 (N.D. Ind. 2012). A defendant is not

always required to act in an ideal or exemplary manner to be immune from suit. A court

only asks if the officer acted reasonably under the circumstances he faced, not whether

another reasonable, or more reasonable, interpretation of the events can be constructed

several years after the fact. Humphrey v. Staszak, 148 F.3d 719, 725 (7thCir. 1998).

Buell was not required to have behaved perfectly on the facts as perceived by an

omniscient observer, but on the facts as they appeared to a reasonable person in [his]

position, even if that reasonable belief turned out to be incorrect. Stokes v. Bd. of Educ.

of the City of Chicago, 599 F.3d 617, 622 (7

th

Cir. 2010).

The Court finds that Buell meets this standard, which Plaintiff does not address at

all. Plaintiff bears the burden of defeating Buells immunity claim. Jewett v. Anders, 521

F.3d 818, 823 (7thCir. 2008). Plaintiffs arguments rely primarily on pre-stop actions such

as Officer Browns initial broadcast of an allegedly suspicious person an a bicycle, and the

request (by someone) that Golubski stop the later suspect who turned out to be Plaintiff.

But Buell stopped Plaintiff based on his independent observation of D.Z. (Defs. Ex. B at

15-17). The stop took place at the end of brief pursuit of a suspect whom Buell had

reason to believe was fleeing Officer Golubski.7 Based on the totality of the events that

Buell saw, and the communications he heard on the dispatch radio, the Court concludes

7 Plaintiff claims that no pursuit took place in this case. (Resp. at 10). He also

states that Buell engaged in a fast moving[,] aggressive, boots-to-the ground inquisitionof sort[s]. (Id. at 9). That sounds an awful lot like a pursuit. The term that is used is notas important as the fact that Buell ran after Plaintiff as soon as he saw Plaintiff cuttingthrough the yards. (Defs. Ex. B at 16-18).

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that an officer in Buells position could have reasonably, although mistakenly, concluded

that reasonable suspicion existed. Defendants motion is granted on this issue.

b. Probable Cause

A police officer has probable cause to arrest a suspect if, at the time of the arrest,

the facts and circumstances within the officers knowledge . . . are sufficient to warrant a

prudent person, or one of reasonable caution, in believing, in the circumstances shown,

that the suspect has committed, is committing, or is about to commit an offense. Wagner

v. Wash. County, 493 F.3d 833, 836 (7thCir. 2007) (per curiam) (internal quote and citation

omitted). A Fourth Amendment violation does not exist if an officer has probable cause to

arrest a suspect. See Driebel v. City of Milwaukee, 298 F.3d 622, 644 (7thCir. 2002). An

allegation of false imprisonment or false arrest is shorthand for an unreasonable seizure

prohibited by the Fourth Amendment. Gonzalez v. Village of West Milwaukee, 671 F.3d

649, 655 (7thCir. 2012).

Defendant denies that he arrested Plaintiff. D.Z. claims that he did, but Plaintiff fails

to explain how the initial stop evolved into an arrest. The transition from a Terrystop to a

custodial arrest involves a flexible and highly fact-intensive inquiry. Jewett, 521 F.3d at

823. See also United States v. Stewart, 388 F.3d 1079, 1084 (7thCir. 2004). The Court

presumes that Plaintiff is relying on the fact that Buell handcuffed him, though D.Z. never

addresses it directly. Being handcuffed may, or may not, turn a Terrystop into a full

custodial arrest, depending on the circumstances involved. See, e.g., Bullock, 632 F.3d

at 1016; Rebolar ex rel. Rebolar v. City of Chicago, Ill., 897 F. Supp.2d 723, 732 (N.D. Ill.

2012) (doubting that being handcuffed for ten minutes necessarily constitutes an arrest).

But see United States v. Howard, 729 F.3d 655, 661 (7thCir. 2013) (Handcuffs in a Terry

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stop and frisk are not and should not be the norm.).

The Court does not address whether Plaintiff was actually arrested or not.

Defendants argument is that, even if an arrest took place, he is still entitled to qualified

immunity because he had arguable probable cause to act as he did. His argument is

twofold: (1) Buell claims that Plaintiff sufficiently resembled the suspects description, and

(2) Buell had reason to believe that Plaintiff was attempting to flee. The first of these issues

was addressed earlier. The Court now turns to the reasonableness of the second issue.

Buell stated during the internal police review that Officer Golubskis radio reports

concerning Plaintiff led him to believe that Plaintiff was trying to run away from Golubski.

(Pls. Ex. 25 at EV 294). He also thought that D.Z. was being evasive when he turned into

the driveway. (Id.). It was at that point that Buell radioed that Plaintiff was cutting through

the yards. When he saw D.Z. place his hands on the fence gate that divided the end of

the driveway and the back yard, Buell handcuffed him because the officer believed that

Plaintiff was trying to flee. (Id. at 298). D.Z. was released within ten minutes, when the

victim arrived and stated that he was not the intruder. Liberally construed, D.Z. challenges

this claim on five grounds: (1) Buells deposition testimony, (2) D.Z.s subjective intent, (3)

the final flash report, (3) his bicycle, and (4) the location of a latch on the gate. The Court

addresses each of these in turn.

Plaintiffs citation of Buells deposition testimony is unavailing. Buell stated that he

handcuffed D.Z. because: (1) he thought that Plaintiff was trying to flee, (2) D.Z. was in

better shape than Buell himself, and (3) Buell was concerned that not doing so might lead

D.Z. to injure himself, Buell, or another officer. (Pls. Ex. 76 at 76-77). Buell does not rely

on the second and third of these comments to support his motion. His only claim is that he

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thought that D.Z. was trying to run away. Plaintiff does not argue that this conclusion is

unreasonable. His only statement on the issue in his response brief is that Buell

handcuffed [D.Z.] because he claims that D.Z. was about to flee. (Resp. at 15). That

merely restates Buells own allegation. It does not present an argument for finding that the

allegation is not reasonable under the circumstances.

Plaintiffs reliance on his private intent also fails to address Buells argument. D.Z.

alleges in his statement of facts that Buell could not have believed that he was trying to flee

because he was not, in fact, attempting to do so. In support, D.Z. cites his own declaration

and various statements from his mother and other persons, including his expert witness.

8

(Pls. SOF at 29). These citations are not relevant because D.Z.s subjective intent is not

8 Plaintiff cites his expert witness for a variety of claims in his response. Courtshave wide discretion in deciding whether to admit expert testimony as part of summary

judgment. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704-05 (7thCir. 2009). TheCourt declines to consider the experts statements for several reasons. Plaintiff cites theexperts report and deposition, but he does not discuss the experts testimony in his brief.This leaves the Court to fend for itself in the face of 318 pages of expert documents. For

the most part, Plaintiff merely cites to these multiple exhibits without any specificity ordiscussion. Courts are not required to scour the record looking for factual disputes . . . [or]to piece together appropriate arguments. Little v. Coxs Supermarkets, 71 F.3d 637, 641(7th Cir. 1995). This applies to deposition transcripts. Hanno v. Sheahan, 2004 WL419899, at *1 (N.D. Ill. March 1, 2004).

Defendant opposes the admission of the experts statements under Daubert v.Merrell Dow Pharm., Inc., 509 U.S. 579, 579 (1993). The Court declines to undertake aDaubertanalysis at this point, as Plaintiffs brief does not include a narrative discussion ofany of the experts statements. The Courts own review of the experts report, declaration,and deposition transcript suggests that many of his statements are ordinary fact and

opinion testimony. Moreover, the expert also makes a number of legal conclusions that,if accepted, could affect the cases outcome. For example, Plaintiff cites the expert to showthat Buell did not act reasonably. (Resp. at 8). Like most Fourth Amendment issues,however, that presents a mixed question of law and fact. Ornelas v. United States, 517U.S. 690, 696 (1996). Expert conclusions on outcome-determinative legal issues areinadmissible. Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557,564 (7thCir. 2003) (citation omitted).

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at issue. Indeed, all parties agree that D.Z. was not trying to run away. The salient

question is whether Officer Buell had reason to think that he was. Buell could only base

his conclusion on what he saw and heard at the time, not on what D.Z. was subjectively

thinking.

Plaintiffs third ground is more problematic. Plaintiff argues that Buell should have

released him as soon as the officer heard the more detailed flash report that was radioed

while D.Z. was already detained. (Resp. at 2; Pls. Add. SOF at 5). Plaintiff bases this

claim on the assumption that the third description was the one that he has relied on

throughout this case: a black male, 17 to 18 years-old, 6'1 to 6'2, 160 to 180 pounds,

black, medium complexion, thin, no facial hair, etc. (Id.). As discussed earlier, that was

never sent out to the officers. Buell denied in his deposition testimony that he ever heard

it. (Pls. Ex. 15 at 39). The actual flash report described the suspect as wearing a black

T-shirt, dark cargo shorts, no hat, skinny, tall probably six feet, high school age. (Defs.

Ex. E at 8:00).

Plaintiff does not mention this description in his brief and does not claim that Buell

ever heard it. The dispatch tape clearly shows that no police unit responded to the flash

report, though the first two reports elicited responses. Moreover, Plaintiff did not ask Buell

at his deposition if he heard the third description. In the absence of any evidence that Buell

heard the report, and with no argument from Plaintiff on the matter at all, D.Z. has not

shown that Buell should have released him based on the third identification.

Next, Plaintiff contests Buells claim that he saw Plaintiff jump off his bike when he

entered the driveway. (Defs. SOF at 36). Buell stated in his interview with the internal

investigator that he saw the bike laying on the ground not even with the kickstand, just

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like it was thrown on the ground. (Pls. Ex. 31 at 635). Plaintiff claims that this undercuts

Buells reliance on the bike issue as a ground for thinking that D.Z. was fleeing. The Court

agrees that an issue of fact exists on whether Buell saw Plaintiff jump off of his bike.

That is not the same, however, as constituting a genuine issue of material fact that

defeats Buells motion. A fact is material when the factual dispute in question is

outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d

1286, 1291 (7thCir. 1997). [F]acts not outcome-determinative under the applicable law,

though in dispute, may still permit the entry of summary judgment. Wainwright Bank &

Trust Co. v. Railroadmens Fed. Sav. & Loan Assn of Indianapolis, 806 F.2d 146, 149 (7

th

Cir. 1986). Buells declaration states that he relied on two factors in concluding that Plaintiff

was fleeing: (1) he matched the suspects description, and (2) the fence issue discussed

below. (Defs. Ex. B at 18). The bike is not part of this. Thus, whether Plaintiff jumped

off his bike or not is not outcome-determinative.

Finally, and most importantly, Plaintiff claims that Buell could not have believed that

D.Z. was trying to flee because the latch to the fence gate was on the driveway side where

D.Z. was standing. Plaintiff does not explain why that fact is relevant to whether Buell had

reason to believe that D.Z. was fleeing. Liberally construed, Plaintiff appears to be claiming

that he would not have placed his hands on the fence to escape, as Buell claims, because

the latchs placement would have allowed him to open the gate without touching the fence.

Plaintiffs brief does not make that argument directly. But the Court cannot discern any

other reasonable basis for the emphasis that D.Z. has placed on the issue, including expert

witness testimony.

The Court finds this position to be unpersuasive. Plaintiff claims that Buells flight

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theory began with the false allegation that the latch was actually on the opposite side of

the gate where D.Z. was standing. (Resp. at 15). But Plaintiff has not cited any evidence

that links the latchs location with the origin of Buells thoughts concerning flight. Buell

never claimed that the latch was not on the driveway side. His declaration does not

mention the latch at all. Plaintiff points to statements on the issue that Officer Hearts-Glass

made to the City of Evanstons Human Services Committee. However, these comments

have no direct relevance to the issue. The important inquiry is the reasonableness of

Buells claims on the issue, not what Ms. Hearts-Glass later stated in her out-of-court

commentary.

In reality, Buell described at the internal investigation that he saw the following:

I saw him with his hands on top of the fence, and I believe that I put out overthe air that he was possibly going through the yards or something like that.

And he had his hands on top of the fence, and it appeared to me like he wastrying to climb over the fence or jump over the fence.

(Pls. Ex. 31 at EV 278). Plaintiff appears to take exception to this claim in his Rule 56.1

submission by citing Buells behavior at his deposition. Plaintiff points out that Buell

physically re-enacted events at the deposition by raising his hands to show what he saw

Plaintiff doing. Plaintiffs counsel stated on the record at the time that Buell was holding up

his hands as if reaching for the top of a fence. (Pls. Ex. 15 at 53). Plaintiff claims that this

demonstrates the gross shortcomings of Buells claim that he saw D.Z. put his hands on

the fence. (Pls. SOF at 27).

The Court is unable to follow what Plaintiff is trying to argue on this point. It may

involve a distinction between claiming that D.Z. put his hands on the fence (as paragraph

37 of Buells Rule 56.1 submission states) and putting his hands on top of the fence. The

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problem with this possibility is that, although it is a straightforward claim to make, Plaintiffs

response does not mention it at all. This fails to respond to Buells argument and

constitutes a waiver of the issue. See Delapaz v. Richardson, 634 F.3d 895, 900 (7thCir.

2011) (noting that arguments not addressed in a response brief are waived). Moreover,

Buells position throughout this case has been that D.Z. placed his hands on the top of the

fence. The Court does not believe that the use of the preposition on, as opposed to on

top of, in Buells declaration is sufficient to defeat his motion.

Plaintiff may also be trying to claim that, in light of the latchs placement, he did not

need to put his hands on or on top of the fence to open the gate. This could pose a

genuine issue of material fact if Plaintiff proffered evidence showing that he did not act in

the way that Buell alleges. Again, however, his response is silent on the issue. Plaintiff

cites parts of his deposition transcript, but they only describe immaterial background facts.

(Defs. Ex. D at 14-21; Resp. at 15). His Rule 56.1 submission references pictures of the

gate. (Pls. SOF at 27). That is unavailing because the latchs location does not establish

anything about what Buell claims he saw.

Plaintiff must allege that he in fact put his hands on the latch instead of raising

them as Buell states. The Courts independent review of Plaintiffs deposition shows that

his counsel asked him at one point if one would need to reach over the fence to open the

gate. Plaintiff stated that the latch on the outside of the gate would open it. D.Z. does not

rely on this testimony in his response. Thus, the deposition statements only address the

issue in the hypothetical. Plaintiff was never asked what he actually did on August 30,

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2012.9 (Defs. Ex. D at 55). Even if Plaintiff had cited this evidence, which he has not, it

would be insufficient to dispute Buells claim. The fact that D.Z. did not need to put his

hands on the top of the gate to open it does not mean that he did not do so as Buell ran up

to him on the driveway.

Under these facts, the only way to set aside Buells alleged reasons for thinking that

Plaintiff was trying to flee is to find that he is not credible. Plaintiff tried to do that earlier by

attacking his declaration under the sham affidavit rule. The Court has already rejected that

claim. Courts are strictly forbidden at the summary judgment stage from making credibility

decisions, weighing the evidence, or deciding what inferences should be drawn from the

facts. Paz v. Wauconda Healthcare and Rehab. Centre, LLC, 464 F.3d 659, 664 (7thCir.

2006). It was Plaintiffs responsibility to cite evidence that controverted Buells claim. Since

he has not done so, Defendants Statement of Fact No. 37 is undisputed. See N.D. Ill. R.

56.1(b)(3)(B) (All materials facts set forth in the statement required of the moving party will

be deemed to be admitted unless controverted by the statement of the opposing party.).

Under these facts, the Court concludes that Officer Buell had arguable probable

cause to effect an arrest, even assuming that the Terry stop in this case became a

custodial arrest. Buell was mistaken about Plaintiff. However, that does not preclude him

from having arguable probable cause to act as he did. The Court stresses that Plaintiff has

the burden of showing that Buell is not entitled to qualified immunity. Yet his brief does not

mention arguable probable cause. Since arguable probable cause exists, Buell is immune

9 Plaintiff states in his declaration that he did not try to climb the fence. (Pls. Ex.25 at 13). Plaintiff does not appear to believe this is relevant, as he has not cited thestatement in his response. Even if he did, however, the declaration fails to address Buellsbasic allegation that he saw D.Z. put his hands on the fence.

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from Plaintiffs Fourth Amendment seizure claim. Williams v. Jaglowski, 269 F.3d 778, 781

(7thCir. 2001). Immunity on the seizure claim also makes Buell immune from the false

imprisonment allegation. See Fleming, 674 F.3d at 880 (discussing the issue in relation to

false arrest claims). Defendants Motion for Summary Judgment is granted on the Fourth

Amendment issues.

2. The State Law Claims

The Illinois Tort Immunity Act provides immunity to local government employees

from tort claims that arise in the scope of enforcing laws, as long as the employees

conduct is not willful or wanton. See Carter v. Chicago Police Officers, 165 F.3d 1071,

1080 (7thCir. 1998). An act is willful if it is committed with actual or deliberate intention to

harm or with an utter indifference to or conscious disregard for the safety of others. Hart

v. Jage, 1999 WL 51792, at *6 (N.D. Ill. Jan. 29, 1999) (internal quote and citation omitted).

Buell asks the Court to find that he is immune from Plaintiffs state-law claims under this

provision, as well as under Illinois common law. In the alternative, he argues that the Court

should decline to exercise supplemental jurisdiction over these claims. Plaintiff has not

responded to either of these requests.

The Court does not reach the immunity issue under these facts. Buell cites a series

of cases for general principles, but he does not address the specific claims that Plaintiff has

brought. The Court will not do so on its own, in part, because Plaintiff alleges more than

state-law tort claims. Count II alleges assault (though Paragraph 1 of the Complaint calls

its battery), and Count II complains of false imprisonment. Both of these allegations involve

common law tort claims that are potentially subject to the Illinois Tort Immunity Act.

However, Count IV of the Complaint alleges a due process violation under the Illinois state

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constitution. This involves the alleged infringement of a constitutional right, not a tort

action. [T]he Tort Immunity Act applies only to tort actions and does not bar actions for

constitutional violations. People ex rel. Birkett v. City of Chicago, 325 Ill.App.3d 196, 202,

758 N.E.2d 25 (Ill.App. Ct. 2001). Thus, even if the Court found that Buell is immune from

Plaintiffs tort claims, the state constitutional allegation would still remain in the case.

Under these facts, the Court will not exercise its supplemental jurisdiction over any

of Plaintiffs state-law claims. A court may decline to exercise its supplemental jurisdiction

over claims like those at issue here once the court has dismissed all claims over which it

has original jurisdiction. 28 U.S.C. 1367(c)(3). A court does not lose subject matter

jurisdiction; rather, it has the discretion to decide whether to exercise its additional

jurisdiction over the state-law claims. See City of Chicago v. Intl College of Surgeons, 522

U.S. 156, 172 (1997). Courts have broad power to decide the issue. See Contreras v.

Suncast Corp., 237, F.3d 756, 766 (7thCir. 2001); Kennedy v. Schoenberg, Fisher &

Newman, Ltd., 140 F.3d 716, 727-28 (7thCir. 1998). [I]t is the well-established law of this

circuit that the usual practice is to dismiss without prejudice state supplemental claims

whenever all federal claims have been dismissed prior to trial. Groce v. Eli Lilly & Co., 193

F.3d 496, 501 (7thCir. 1999).

The only claims in this case over which the Court had original jurisdiction were those

brought pursuant to the Fourth Amendment. Those claims have been dismissed, and the

Court will not exercise its supplemental jurisdiction over the remaining state-law allegations.

Counts II, III, and IV of the Complaint are dismissed without prejudice. Plaintiff remains

free to re-file them in state court.

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D. Conclusion

For all these reasons, Defendants Motion for Summary Judgment [76] is granted.

Plaintiffs Fourth Amendment claims in Count I are dismissed with prejudice. His state-law

claims in Counts II, II, and IV are dismissed without prejudice.

Date: February 26, 2014 _________________________

United States Magistrate Judge

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thompson v. buell summary judgment

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