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KIES v. CITY OF AURORA
August 16, 2001
HELEN KIES, PLAINTIFF,
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
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
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
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
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
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
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.
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 ...