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KIES v. CITY OF AURORA

August 16, 2001

HELEN KIES, PLAINTIFF,
v.
CITY OF AURORA AND AURORA POLICE OFFICER DERRICK SMITH DEFENDANTS.



The opinion of the court was delivered by: Alesia, District Judge.

    MEMORANDUM OPINION AND ORDER

Currently before the court are: (1) plaintiff's motion in limine, (2) defendants' motions in limine, (3) defendant Officer Smith's motion for partial summary judgment, and (4) defendant City of Aurora's motion for summary judgment. For the reasons set forth below, the court (1) grants in part and denies in part plaintiff's motion in limine, (2) grants defendants' motions in limine, (3) grants in part and denies in part Officer Smith's motion for partial summary judgment, and (4) grants in part and denies in part City of Aurora's motion for summary judgment.

I. BACKGROUND*fn1

Defendant Officer Derrick Smith ("Smith") is a police officer with the Aurora Police Department. At the time of the alleged incident, he was also a school resource officer at Waldo Middle School ("Waldo"). Plaintiff Helen Kies ("Kies") has filed a complaint against Smith and the City of Aurora ("the City") alleging, inter alia, use of excessive force, malicious prosecution, and First Amendment violations. Her complaint is based upon an incident at Waldo on May 29, 1998, and upon a subsequent criminal charge Smith filed against Kies.

In order to understand this court's opinion, one must be aware of a number of facts. For the sake of clarity, a recitation of these facts is in two parts. Part A discusses the facts surrounding the May 29, 1998 incident at Waldo. Part B discusses the facts relating to Kies's excessive force complaint against Smith and his subsequent criminal obstruction charge against Kies.

A. Incident at Waldo Middle School

On May 29, 1998, Kies drove to Waldo to pick up her daughter, Jessica Englund, and her daughter's two friends. As she was waiting in her vehicle about twenty to thirty feet from the school's entrance, Kies saw two boys, Salvador Delgado ("Delgado") and Giovanni Perez ("Perez"), begin fighting near the school. Smith, a City of Aurora police officer and school resource officer at Waldo, was present as the fight began.

To break up the fight, Smith grabbed Delgado while a counselor, Omar Magana ("Magana"), grabbed Perez. At Smith's direction, Magana released Perez, but Delgado escaped from Smith's grasp, and the boys starting fighting again. Smith grabbed Perez and turned him around. At this point, Kies got out of her vehicle and remained standing about twenty to thirty feet away. There were about twenty to twenty-five students present.

Kies then saw Smith hit Perez in the lower jaw with his forearm. Perez fell to the ground, landed on his hands, and started to crawl away. Before he could crawl away, however, Smith grabbed Perez's shoulder, flipped him over on his back, jumped on him, and put his knee on Perez's chest to hold him down. Smith then struck Perez three to four times in the face with a closed fist. Perez briefly lost consciousness and lay on the ground without moving. The parties dispute the conduct of the student onlookers while Smith and Perez were on the ground. According to defendants, the students were becoming uncontrollable and chanting for Perez. According to Kies, the congregated children appeared frightened, but they were not loud or noisy.

About this time, Kies began to run from her vehicle toward Smith and Perez. She saw Smith pull up Perez by the back of his clothing and shake him. When she reached Smith and Perez, she heard Smith tell Perez to "shake it off" and that he was okay, but she did not hear Perez say anything. Kies asked Smith why he hit Perez. The parties dispute the volume of Kies's voice at this point — according to defendants, Kies used "a voice that was louder than a conversational voice," but according to Kies, she did not raise her voice. Smith told Kies it was none of her "damn business." Kies asked him again what he thought he was doing, and Smith told Kies it was a police matter and she should go home.

Smith then began walking along the sidewalk with Perez toward an entrance of the school about a block away. Because Perez could not walk on his own, Smith was dragging him. Again, the parties dispute the conduct of the student onlookers as Smith was taking Perez away. According to defendants, some of the students were pushing and shoving each other, but Kies denies this. Kies noticed a lump swelling on the side of Perez's cheek, and she continued to walk alongside Perez, who was next to Smith. She asked Smith if she could see if Perez was okay, but Smith ignored her. The three continued walking on or near the sidewalk toward the school entrance. Perez stumbled, and Kies again asked Smith if she could see Perez and said that she would go home once she knew he was okay. At this point, Perez's eyes rolled back into his head, and Smith again told Kies it was none of her business and to go home.

Kies asked Smith one more time again why he had hit Perez. She also told Smith her name three or four times, and explained that she was Jessica Englund's mother, not Perez's mother. Kies was near tears or crying at this point. On at least two more occasions Smith told her to go home. Still, Kies continued to walk alongside Perez and ask Smith if she could see if Perez was okay. Smith did not answer. Finally, just as the three were nearing the school entrance, Kies leaned over to Perez and asked him if he was okay. When Perez did not answer, Kies told him to have his mother call her and she would tell her what happened. In response, Smith slapped Kies in the face. Kies told Smith not to touch her again, she began crying, and she walked back to her vehicle. There were at least ten people observing at this time. Smith then continued into the school with Perez, where Perez spoke with school officials. Defendants admit that Kies never blocked Smith's path or prevented him from arresting Perez, and that Kies never threatened Smith or made any threatening gestures. Throughout the entire incident, Kies walked on or near the sidewalk next to Perez, who was next to Smith, and the three continued walking toward the school entrance. That same day, Smith pressed criminal charges against Perez and Delgado, but after speaking with the students, he dismissed the charges and released them to their parents.

B. Excessive force complaint and subsequent obstruction charge

Also that same day, Kies went to the Aurora police station and filed an excessive force complaint against Smith. Meanwhile, Smith filed a written police report regarding the incident.

About a week later, on June 4, 1998, Sergeant Leden ("Leden"), the investigator assigned to Kies's excessive force complaint, interviewed Kies regarding Smith's conduct. On June 19, 1998, about three weeks after the incident, Leden sent Smith a letter indicating that Kies had filed an excessive force complaint against him and that the department was conducting an investigation. On July 10, 1998, about six weeks after the incident, Leden interviewed Smith as part of the department's investigation. During the interview, Smith asked Leden whether he could still file a criminal obstruction charge against Kies.

On July 10, 1998, immediately following the interview and about six weeks after the incident at Waldo, Smith went to the State's Attorney's Office, completed a follow-up report and synopsis, and filed a criminal complaint against Kies, accusing her of obstructing a peace officer in connection with the May 29, 1998 incident. Obstructing a peace officer is a Class A misdemeanor carrying a penalty of up to 364 days in jail. Smith then asked a clerk how to issue a warrant for Kies's arrest.*fn2 Subsequently, Kies received a telephone call advising her that an arrest warrant had been issued, so she reported to the police station where she was fingerprinted and released.

After Leden completed his investigation of Kies's complaint, he wrote a report and gave the report and file to Commander Michael Nila ("Nila") for review. After additional investigation, Nila decided Smith had not violated the general order on use of force, but he had violated the department's general orders by filing charges against a citizen in retaliation for the citizen's filing a complaint against the officer. Chief Langston sent Smith a reprimand on November 4, 1998.

On July 13, 1999, Kies's criminal trial was held, and the judge entered a directed verdict in favor of Kies. During Kies's criminal prosecution, the State's Attorney's Office was aware that Kies had filed an excessive force complaint against Smith with the police department, that Smith filed the criminal charge against Kies after she filed her excessive force complaint, and that Kies and Leden both believed Smith filed the criminal charge in retaliation for Kies's complaint against him.

After prevailing at her criminal trial, Kies filed this seven-count complaint, alleging: (1) use of excessive force as prohibited under 42 U.S.C. § 1983 ("§ 1983"); (2) state law malicious prosecution; (3) § 1983 malicious prosecution; (4) § 1983 First Amendment violation; (5) § 1983 unconstitutional cover-up; (6) state law respondeat superior; and (7) state law indemnification. On June 5, 2001, the court granted defendants' motion to dismiss Kies's § 1983 unconstitutional cover-up claim and to dismiss defendants Nila and Brown from the amended complaint in its entirety. See Kies v. City of Aurora, 149 F. Supp.2d 421 (N.D.Ill. 2001).

Currently before the court are (1) Kies's motion in limine; (2) defendants' motions in limine; (3) Smith's motion for partial summary judgment on Kies's malicious prosecution and First Amendment claims;*fn3 and (4) the City's motion for summary judgment.

II. DISCUSSION

As a threshold issue, the court will dispose of the parties' motions in limine to establish what evidence is admissible and, therefore, properly before the court in support of the summary judgment motions. Kies has brought a motion in limine consisting of four numbered paragraphs. Defendants Smith and the City (collectively "defendants") have brought four motions in limine. The court will address each party's motions in limine in turn.

A. Kies's motion in limine

Kies's motion in limine seeks to exclude the following: (1) reference to gangs, (2) reference to prior criminal charges, (3) reference to mental health issues, and (4) argument that Kies uses prescription drugs. Defendants responded to each paragraph of Kies's motion.

1. Reference to gangs

The Seventh Circuit has recognized that evidence of gang membership is likely to be damaging to a party in the eyes of the jury. United States v. Butler, 71 F.3d 243, 251 (7th Cir. 1995). Evidence of gang membership should be excluded under Federal Rule of Evidence 403 "if its probative value is substantially outweighed by the danger of unfair prejudice." United States v. Rodriguez, 925 F.2d 1049, 1053 (7th Cir. 1991). Here, the court finds that the danger of unfair prejudice outweighs the probative value of this evidence. Accordingly, the motion is granted as to paragraph one.

2. Reference to prior criminal charges

In moving to bar references to prior criminal charges against any witness, Kies argues that no convictions of any witness were uncovered during discovery which qualify under Federal Rule of Evidence 609. Defendants do not object, so long as the parties are barred from making ...


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