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GARCIA v. CITY OF CHICAGO

March 19, 2003

GEORGE GARCIA, PLAINTIFF,
v.
CITY OF CHICAGO, OFFICER ZAMIR OSHANA, JOSEPH FIVELSON, AND SARGON HEWIYOU, DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, United States District Judge

MEMORANDUM OPINION AND ORDER

On November 20, 2001, plaintiff George Garcia ("Garcia") filed his original complaint in this case, naming as defendants the City of Chicago ("City"), Officer Zamir Oshana ("Oshana"), and an Unknown Chicago Police Officer. After more than fourteen months of pretrial proceedings before this court and Magistrate Judge Denlow, on February 4, 2003, plaintiff Garcia filed his second amended complaint, which named Joseph Fivelson ("Fivelson") as a defendant, along with the City and Oshana, eliminated the Unknown Chicago Police Officer as a defendant, and in its place added Sargon Hewiyou ("Hewiyou"). Counts I and IV allege excessive force and First Amendment violations under 42 U.S.C. § 1983 against the City, Oshana, and Hewiyou. Count V alleges conspiracy violations under 42 U.S.C. § 1983 against the City and Fivelson. Finally, counts II, III, VI, and VII allege state law claims of assault, battery, respondeat superior liability, and indemnification against the City, Oshana, and Hewiyou. The City has filed a motion for summary judgment as to its liability on all counts.*fn1 For the following reasons, the City's motion for summary judgment is granted in part and denied in part. Summary judgment is denied as to the count I excessive force claim against the City and the count V conspiracy to conceal and deny meaningful access to courts claim against the City. Summary judgment is granted in favor of the City and against Garcia as to the state law claims in counts II, III, VI, and VII, and the First Amendment claim in count IV.

STATEMENT OF FACTS

I. February 2, 2001

Plaintiff Garcia and defendant Officer Oshana had been good friends in the past. Their friendship turned sour sometime in the middle of 2000, when Garcia and his girlfriend at the time, Kelly Lazo, had a difficult break-up and Oshana began dating her just one week after the break-up. After discovering that Lazo and Garcia were still calling each other, Oshana became angry and threatened to beat Garcia up. Sometime after that, Oshana drove up to Garcia and again threatened to hurt him. Garcia responded that if Oshana beat him up, Garcia would show the Chicago Police Department ("CPD") a photograph Garcia allegedly had of Oshana, who is or was a member of a gang called the Assyrian Kings, making the Latin Kings gang sign with his fingers ("Photograph").

On February 2, 2001, Garcia was at his uncle's restaurant on the north side of Chicago around 6:00 p.m. when he saw Oshana's truck circling the restaurant. Garcia then walked to the 20th District police station and reported Oshana's threats to beat him up and the existence of the Photograph. Garcia then returned to the restaurant to pick up his brother. As he was leaving the restaurant with his younger brother and cousin, Oshana and a large man Garcia did not recognize, now identified as Sargon Hewiyou ("Hewiyou"), approached. Oshana was off duty and on vacation on February 2, 2001, was wearing his street clothes, and driving his truck. Hewiyou, who is not a Chicago police officer, was wearing a microphone or walkie-talkie device on his shoulder of the sort usually worn by police officers, and a badge around his neck.

Oshana yelled at Garcia to "come here, you bitch, I want to talk to you." Garcia took his brother and cousin and continued walking. Hewiyou began to push Garcia and when Garcia tried to get away, Hewiyou identified himself and Oshana as police officers and showed Garcia a star-shaped badge attached to a wallet on a chain around his neck. Hewiyou began to strike Garcia, and Garcia attempted a ruse, stating that the police were coming or words to that effect. Hewiyou and Oshana responded that they were the police, and Oshana unzipped his jacket and showed Garcia his gun and his badge. As Oshana was beating Garcia up, Oshana asked where the Photograph was, and when Garcia did not answer, Oshana and Hewiyou attempted, unsuccessfully, to pull Garcia into Oshana's truck. Hewiyou and Oshana continued to punch, kick, and strike Garcia, causing, among other things, a broken nose, fractured eye orbital, and serious hip injuries. When Oshana went to pick up a metal garbage can, Garcia escaped and began to run away. Oshana put his hand on his gun and demanded Garcia stop. Hewiyou took out his gun and ordered Garcia to stop because he was a police officer and threatened to shoot Garcia if he didn't stop.

Garcia ran to the 20th District police station and reported what had happened. The police officers put out a radio broadcast concerning the incident and a description of Oshana's vehicle. The officers then drove around with Garcia looking for Oshana and Hewiyou. Garcia claims the search lasted approximately ten minutes. Afterwards, Garcia spoke with a police sergeant at the station concerning the incident, who told Garcia that somebody from the Office of Professional Standards ("OPS") would contact Garcia.

Officer Paul Sedlacek ("Sedlacek") is Oshana's former partner. On the evening of February 2, 2001, Sedlacek was patrolling in his District when he saw a message on his personal data terminal indicating that a black truck which he knew from the license plate to be Oshana's was involved in Some criminal activity. Sedlacek then contacted Oshana, found out where he was, informed Oshana about the details of the report, and told Oshana to call the 20th District to straighten it out. Sedlacek, however, did not contact anyone at the 20th District. Oshana then contacted the watch commander for his district, Lieutenant Cohnen ("Cohnen") and informed him of the situation. Cohnen asked where Oshana was and how long he had been there, and instructed Oshana to call Cohnen immediately if anyone from the 20th District arrived to arrest Oshana. The parties dispute whether Cohnen told Oshana not to "worry about it" if the 20th District did not show up. Nobody from the CPD contacted or arrested Oshana that evening, and Oshana, himself, did not contact the 20th District. Oshana was later told by Chicago Police Captain Robarts-Dillon that he should not contact the 20th District and should instead do nothing.

Garcia presents evidence that a few weeks after the beating, Oshana threatened two of Garcia's cousins and also confronted Garcia's friend and told him to tell Garcia not to pursue the matter of the beating. There is also evidence that in August 2001, Oshana's cousin told Garcia that if he did not "undo what he did" to Oshana, Garcia and his family would be killed.

II. Investigations

Garcia's case was assigned to defendant Fivelson from the Internal Affairs Division ("IAD"). Although Garcia's case was originally assigned to OPS, which is the CPD agency which customarily handles excessive force cases, Garcia's case was reassigned to the LAD because the CPD determined that Garcia's battery allegations were intertwined with an investigation of Oshana's gang involvement, which required a "covert investigation." Fivelson conducted some surveillance of Oshana in February and March 2001, however ceased his surveillance because of the risk of jeopardizing the covert investigation. In March and April 2001, Fivelson also took written statements from witnesses who corroborated that Oshana had beaten Garcia up. After taking these witnesses' statements, no further investigation of the battery allegation was conducted by Fivelson, who testified that he did not interview any officers who worked in Oshana's District so as not to hinder the covert investigation into Oshana's gang activity, and did not interview Oshana's commander out of the fear that it might get back to Oshana that he was being investigated. Oshana has never been asked to speak to Fivelson, or anybody else at OPS or IAD, to address Garcia's battery allegations, and none of Oshana's friends or acquaintances have been interviewed. From August through October 2001, Oshana took a leave of absence for three months, during which time Fivelson states he could not further investigate Oshana. Oshana has never heard of Fivelson, and only first learned there was an investigation of Garcia's allegations a few months prior to his October 1, 2002 deposition.

Under the written standard operating procedures for CPD, the investigations of claims such as Garcia's are to be completed within thirty days. However, John Minogue ("Minogue"), the Assistant Deputy superintendent in charge of LAD testified that the length of an IAD investigation depends upon the facts of the case and what avenues LAD has to take in a particular investigation and it is not unusual for an investigation to go on as long as two years without reaching a determination. The interview of an officer is generally the last thing that is done in an investigation. Minogue further testified that LAD investigators speak regularly with the State's Attorney's Office about a criminal charge against a police officer that is being investigated by LAD, and that IAD reviews each case once a month in order to make a determination of whether to "sustain" or send the case to the State's Attorney's Office. In the present case, Garcia filed his original complaint in this lawsuit on November 20, 2001. Garcia presented some evidence that Fivelson was only prompted to "sustain" Garcia's complaint in January 2002 when he found out that Garcia filed a civil law suit over the incident. Oshana has since been charged criminally for the alleged beating of Garcia and stripped of his police badge.

Whether a battery complaint is made against a police officer or a citizen, the preliminary investigation is the same. After the preliminary investigation, the parties dispute whether the treatment of battery claims are different depending on whether the perpetrator is a police officer or a citizen. Garcia has presented some evidence that if the perpetrator of an alleged battery is a citizen and not a police officer, cases are referred to the State's Attorney's Office when the allegations constitute felony battery, which includes situations: (a) where there is great bodily harm, or (b) where the person battered is, on or about a public way, public property or public place of accommodation or (c) where it involves use of a deadly weapon. Garcia presents some evidence that, in contrast, when the accused is a police officer, the City's policy is that allegations of felony battery are eligible for referral to the State's Attorney's Office only when certain additional factors are present: broken bones, admission to the hospital, stitches/lacerations, injury resulting from being struck with a bludgeon or deadly weapon, death, or a media case. In addition, cases involving ...


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