the beating, and then drove him home. Therefore, there is evidence that
he knew the same things that Detective Brennan knew about Mr. El-Uri's
condition, and a rational jury could conclude that he exhibited the same
reckless disregard for Mr. El-Uri's health.
The two detectives invoke qualified immunity as a defense.
"[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In qualified immunity cases, I first consider
whether, "taken in the light most favorable to the panty asserting the
injury,  the facts alleged show the officer's conduct violated a
constitutional right." Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156
(2001). "The next, sequential step is to ask whether the right was clearly
established." Id. Here, on the version of the facts that I must accept
for the purposes of this motion, Mr. El-Uri's due process rights were
plainly violated. The question is whether the right in question was
clearly established. The inquiry focuses on the "objective legal
reasonableness" of the action, not the state of mind of the officials in
question. Anderson v. Creighton, 483 U.S. 635, 639 (1987)
To show that a right was clearly established, a plaintiff may invoke a
"closely analogous case" that has already established both the night at
issue and its application to the factual situation at hand, see McGrath
v. Gillis, 44 F.3d 567, 570 (7th Cir. 1995), or show that "the violation
was so obvious that a reasonable person would necessarily have known
about it." Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th Cir. 2000);
Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996). Binding precedent is
not necessary to clearly establish a night, Rakovich v. Wade,
850 F.2d 1180, 1209 (7th Cir. 1988); in extreme cases, an analogous case
might never arise because "the existence of the night was so clear . . .
that no one thought it worthwhile to litigate the issue." Burgess v.
Lowery, 201 F.3d 942, 945 (7th Cir. 2000). "An easy or obvious case of
deprivation that has no precedent does not mean that `officials would be
immune from damages liability because no previous case had found
liability in those circumstances.'" Brokaw, 235 F.3d at 1022 (citing
K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990))
This is an easy or obvious case. Any reasonable officer would know that
if he beats and kicks a plaintiff to within an inch of his life, it gives
rise to an inference that the victim of this attack is in need of medical
attention. See Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996)
("Beating a person in violation of the Constitution should impose on the
assailant a duty of prompt attention to any medical need to which the
beating might give rise, by analogy to the duty in ordinary tort law to
provide assistance to a person whom one has injured."). If the officer, or
his partner who observed the beating and its aftermath, then fails to
provide the attention even after the victim screams in pain for an
extended period, spits up fluids, and hobbles painfully, he shows
deliberate indifference. The individual officers have no qualified
immunity defense here.
All defendants, including the individual officers and the City of
Chicago, argue that they are entitled to summary judgment on counts IV
and V because there is no independent tort of "willful and
wanton conduct." Ziarko v. Soo Line R. Co., 641 N.E.2d 402, 406 (Ill.
1994). Count IV, against Detective Brennan and the City, they say, is
just a battery claim, equivalent to count III; count V, against the two
detectives and the City for failure to provide medical treatment, is not
a recognized tort in Illinois. They also move to dismiss count VI
(negligence), because their conduct was immunized under the Illinois Tort
Immunity Act, 745 ILCS 10/2-202 (A public employee is not liable for
negligence "in the execution or enforcement of any law," but he is liable
if his "act or omission constitutes willful and wanton conduct."),
because they were executing and enforcing the laws in investigating the
death of Mr. El-Uri's friend.
The point about count IV is correct. Nothing more than battery is
described in the facts. Battery is an intentional tort, and "[w]illful
and wanton conduct includes that which was performed intentionally." Id.
I grant summary judgment on Count IV as redundant. Likewise with count
V. The defendants are correct that "willful and wanton" conduct is an
element of a cause of action, not a cause of action on its own. Count
VI, however, stands. Negligence by law enforcement officials is
actionable under the "willful and wanton" statutory exception to the
Illinois Tort Immunity Act. Because a rational jury could believe that
the defendants' conduct was constitutionally reckless, "that is, so
dangerous that the[ir] knowledge of risk can be inferred," Salazar, 940
F.2d at 238, the jury could accept the claim that the conduct willful and
wanton, and so not immunized under the Illinois Tort Immunity Act. The
detectives could be held liable for negligence under this theory.
I GRANT the defendant's motion for summary judgment on counts IV and
V. I DENY their motions for summary judgment on counts II and VI.
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