United States District Court, N.D. Illinois
February 4, 2004.
ABE SCOTT, et al., Plaintiffs, v., CITY OF CHICAGO, et al., Defendants
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Abe Scott and his wife, Shirley Scott (collectively, "plaintiffs"),
sue Chicago Police Officers Frederick Hasenfang, David Monies, and Brian
O'Leary (collectively, "defendant police officers") and the City of
Chicago ("the city") pursuant to 42 U.S.C. § 1983. Specifically,
plaintiffs allege that the officers conducted a warrantless search of
their residence in violation of the Fourth, Fifth and Fourteenth
Amendments (Count I). Count I also alleges that the officers' misconduct
was part of the city's policy or custom of failing to properly train or
discipline officers. Count II alleges the officers conspired to deprive
plaintiffs of their constitutional rights. The officers and the city
jointly move for summary judgment pursuant to Fed.R.Civ.P. 56(c).
All facts are undisputed unless otherwise noted. On the evening of
February 9, 2002, plaintiffs planned to attend a party at a friend's
house in Chicago Heights. Pl's Facts at ¶ 6. Earlier that year,
plaintiffs purchased a home alarm system from ADT Security Services,
equipping every door with a contact sensor and the interior hallway
with a motion detector. Id. at ¶¶ 2-3. The alarm system
could be controlled from both a wall unit and a remote control; the
remote control contained a manually activated panic button.
Id. Before leaving for the party, plaintiffs armed the system.
However, on the way out of the house, Shirley Scott tripped the burglar
alarm. Id. at ¶ 8. Plaintiffs were already outside when they
realized the alarm was going off. In a hurry to leave for the parry,
Shirley Scott attempted to turn the alarm off with the remote control,
instead of returning to use the inside control pad. In doing so, she
accidentally activated the panic alarm instead of pressing the off
button. Id. at ¶¶ 8-9. Unaware of the mistake, plaintiffs
left for the party.
The alarm alerted ADT. Id. Pursuant to plaintiffs' prior
instructions, ADT contacted Shirley Scott's son, Darion Knight.
Id. Knight, in turn, called Shirley Scott to inform her that the
alarm was going off. Id. Shirley Scott immediately contacted ADT
to report that it was a false alarm and that she must have triggered the
panic alarm by mistake. Id. at ¶ 9. In the meantime, ADT
contacted the Chicago Police Department at 8:34 p.m. and advised that a
panic alarm had been triggered at plaintiffs' residence. Id at
¶ 11. At 9:03 p.m., the police dispatcher contacted Officer Hasenfang
and advised him to respond to the panic alarm at plaintiffs* home.
Id. at ¶ 12. The dispatcher advised Officer Hasenfang that
the call "had a lot of time on it," meaning that a substantial amount of
time had elapsed since the 911 center initially fielded the alarm call.
Id. Officer Hasenfang finished his dinner and proceeded to
plaintiffs' residence. Id. at ¶¶ 15-16. He did not activate
his siren or MARS lights. Id. at ¶ 19. He arrived at
plaintiffs' home about 15-20 minutes after receiving the call from
dispatch. Id at ¶ 21.
Once Officer Hasenfang arrived at plaintiffs' residence, he surveyed
the scene. He did not observe any activity in the vicinity of plaintiffs'
home. Id. at ¶ 22. Nor did he note any noises or movements
suggesting someone was in the house. Id, He heard the alarm
Officer Hasenfang testified at his deposition that in his
experience, panic alarms often turned out to be false alarms.
Id. at ¶ 23. Nevertheless, Officer Hasenfang proceeded to
investigate. He noticed that a rear screen door was damaged and
unsecured. Id. at ¶ 24; Hasenfang Dep. at ¶ 18. Behind
the damaged screen door was a sliding glass door. Officer Hasenfang
noticed scratches around the door's lock. Id. The parties
dispute whether the door was open. Cf. Hasenfang Dep. at ¶
18 (door was approximately six inches open), with Pl's Facts at
¶ 4 (alarm cannot activate if a door is open).*fn1 Officer Hasenfang
did not enter plaintiffs' home at that time. At 9:19 p.m., he retreated
to the garage and called for back-up. He advised the dispatcher that he
had "an open door on this panic alarm and nobody's answering,"
Id, at ¶ 25.
Between 9:24 p.m. and 9:30 p.m., Officers O' Leary, Montes, Simpson,
Tunney and Sergeants Robinson and Flores advised the dispatcher they
would assist Officer Hasenfang. All officers arrived at plaintiffs'
residence about the same time. Sgt. Robinson arrived last, around 9:32
p.m. Id. at ¶ 29. Hasenfang explained the situation to the
other officers and they determined to enter plaintiffs' home.
Id. at ¶¶ 30, 34. While other officers entered plaintiffs'
home through the rear door, Officer Tunney stood watch outside the home
for any intruders trying to escape. Id. at ¶ 34, Upon entry,
the officers fanned out to search the premises. Id. Hasenfang
was first and searched the master bedroom. Id. Officer Simpson
and Sergeants Robinson and Flores noticed that the house was in disarray
and that the hvac floor covers had been removed. Id. at ¶
37. After establishing that the home was secure, the officers gathered in
plaintiffs' family room. Hasenfang emerged from the master bedroom
carrying three guns that he discovered laying on the bed. Id. at
¶ 38. Officers Simpson and Tunney and Sergeants Robinson and Flores
left shortly thereafter; Officers Hasenfang, Monies and O'Leary remained.
Id. at ¶ 39.
At 9:47 p.m., the police dispatcher informed the remaining officers
that plaintiffs' relative would arrive in 20 minutes. Id. at
¶ 41. When John Moore, Shirley Scott's brother, arrived, he saw only
one police car parked down the block. Id. at ¶¶ 42-44. Moore
waited outside for five minutes, and then rang plaintiffs' door bell.
Id. Two white police officers answered the door, and took Moore
to the back of the house. Id. As the officers showed Moore the
rear door and explained that they suspected burglars had entered there,
Moore noticed that the house was in total disarray and that the hvac
vents had been removed. Id. at ¶ 44. Returning to the family
room, Moore saw the officers examine plaintiffs' firearms on the dining
room table. Hasenfang 11/18/03 Dep. at p. 55. When the officers inquired
whether the firearms were registered, Moore responded that they were not
Id. Moore never saw a third officer in the home. Pl's Facts at
Another police officer then arrived. Id, The two officers left
Moore and went outside to talk to the arriving officer. Id. By
10:13 p.m., Officers Monies and O'Leary had left plaintiffs' home and
were on then-way to the 8th District station to inventory
the firearms discovered inside plaintiffs' home. Id at ¶ 47.
Meanwhile, Hasenfang completed a police report and gave it to Moore.
Id. at ¶ 49.
Shirley Scott returned home alone around 11:00 p.m., while Abe Scott
remained at the party. Id. at ¶ 50, No police were present.
Moore was still in the bedroom because every time
he tried to leave the room he triggered the motion sensor and set
off the alarm. Id. Abe Scott arrived around 3:00 a.m.
Id. at ¶ 51. He discovered that $750 in cash he had given
his wife for the mortgage payment was missing from the bedroom along with
his wife's jewelry. Id. Two mink coats were missing from a
closet; the closet door had been run off its tracks.
For purposes of their Monell claim, plaintiffs also introduce
evidence relating to the Police Department's disciplinary histories and
polices as well as the officers' individual disciplinary histories. Each
of the defendant police officers has been the subject of multiple
civilian complaints. Officer Hasenfang has been the subject of 22
civilian complaints in the last 12 years. Id. at ¶ 62.
Officer Monies had 19 civilian complaints in 10 years and Officer O'Leary
had 21 civilian complaints in 7 years. Id. None of these
complaints were sustained. Id.
Plaintiffs introduce multiple studies and reports on the Chicago Police
Department, including the 1997 Report of the Commission on Police
Integrity ("the Webb Report") and Internal Affairs Division Biennial
Reports from 1993 through 2000. The Webb Report discusses potential
changes in officer field training. Id. at ¶ 55. The biennial
reports record the complaints civilians have lodged against the Chicago
Police Department. Id. at ¶¶ 56-60. Plaintiffs submit the
testimony of Lt. Thomas Tranckitello, an Internal Affairs superintendent,
which discusses the process of filing and investigating civilian
complaints against Chicago police officers. Id. at ¶ 61.
Defendants submit the city's official policies regarding disciplinary
procedures, as well as statistics detailing the number of incidents
individual officers were involved in from 1993-2001. Def's Facts at ¶¶
21-33. Defendants also submit reports detailing the disciplinary activity
carried out by the Office of Professional Standards and the Internal
Affairs Division from 1993 2001. Id. at ¶ 27.
Plaintiffs concede the accuracy of these policies and both sets of data.
plaintiffs contend their evidence demonstrates that the city has
adopted a widespread custom in which officers understand that their
unlawful acts will not be subject to disciplinary measures.
The gravamen of plaintiffs' complaint is that the defendant police
officers illegally entered their home. According to plaintiffs, this
unlawful entry led to the seizure of plaintiffs' firearms as well as the
theft of cash, jewelry and the mink coats from the master bedroom.
Plaintiffs further contend that the theft was caused by the city's policy
or custom of failing to discipline and properly train its officers.
I. Summary Judgment
A. Legal Standard
A movant is entitled to summary judgment when the record, viewed in the
light most favorable to the non-moving party, shows there is no genuine
issue of material fact and that the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Dyrek v. Garvey,
334 F.3d 590, 597-98 (7th Cir. 2003); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct 2548 (1986). Entry of summary judgment against a party
is proper when the non-moving party fails to "make a showing sufficient
to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial."
Dyrek, 334 F.3d at 597-98; Celotex, 477 U.S. at 322, 106 S.Ct.
2548. To survive a motion for summary judgment, the nonmovant must
do more than merely demonstrate a factual dispute; he must offer evidence
sufficient to support a verdict in his favor. Basith v. Cook
County, 241 F.3d 919, 926 (7th Cir. 2001). "The mere existence of a
scintilla of evidence in support of the [nonmoving party's] position will
be insufficient; there must be evidence on which the jury could
reasonably find for
the [nonmoving party]." Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505 (1986).
B. Defendants' Evidentiary Objections
Plaintiffs have no evidence to support many of the crucial facts
underlying their claims. For example, plaintiffs do not know whether the
sliding glass door was open and whether someone entered their home after
Shirley Scott triggered the panic alarm, but before Officer Hasenfang
arrived. Plaintiffs rely on the ADT alarm report to establish their
claims. The plaintiffs attach the ADT report to their own affidavits,
attesting that ADT sent them a computerized copy of the report.
Defendants argue that the ADT report is unauthenticated, inadmissable
hearsay. Evidence relied upon to defeat a motion for summary judgment
must be admissible. Haywood v. Lucent Techs., Inc., 323 F.3d 524,
533 (7th Cir. 2003). As defendants point out, the report is hearsay
insofar as it is used to prove that the sliding glass door was actually
closed. Although the ADT record is purportedly a record of ADT's regular
monitoring activity, the report is inadmissible unless it is
authenticated by ADT's records custodian or a qualified witness.
Fed.R.Evid. 803(6); Fenje v. Feld, No. 01 C 9684. 2003 WL 22922162, at
*24-25 (N.D. Ill. Dec. 9, 2003). Plaintiffs' affidavits are insufficient
to save the ADT report from defendants' hearsay objection. Without actual
knowledge of ADT's methods or of the contents of the report, plaintiffs
are unqualified to establish the authenticity and reliability of the ADT
report. United States v. Fuji, 301 F.3d 535, 539 (7th Cir. 2002)
(computer printouts documenting activity but not made in normal course of
business are admissible as long as they are properly transmitted and
authenticated by individuals with knowledge). Therefore, the court may
not consider the ADT report for purposes of summary judgment.
II. Count I
A. Illegal Search and Seizure Against Officers Hasenfang,
Monies and O'Leary
Plaintiffs contend Officers Hasenfang, Montes and O'Leary violated
their constitutional rights by entering their home without prior
authorization or a search warrant It is undisputed that defendant police
officers did not have either a warrant or plaintiffs' consent to enter
their house. Defendants argue the officers' entry was proper due to
exigent circumstances. Defendants assert the unregistered firearms were
properly seized because the guns were in plain view while the officers
were lawfully in the home. As to plaintiffs' allegations that the
officers stole their mink coats, cash and jewelry, defendants point out
that plaintiffs have offered no evidence that the officers stole these
items. Alternatively, defendants argue conversion of personal property is
not a constitutional claim that can be redressed under § 1983.
Searches and seizures inside a home without a warrant are presumptively
unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct.
1371 (1980). However, warrantless searches and seizures are permitted
when probable cause and exigent circumstances exist. United States v.
Marshall, 157 F.3d 477, 481-82 (7th Cir. 1998) citing Welsh v.
Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091 (1984). Probable cause
is determined from the totality of the circumstances. Illinois v.
Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317 (1983). Exigent
circumstances exist when there is a compelling need for official action
and no time to secure a warrant Marshall, 157 F.3d at 482. The
relevant question is whether the defendant officers had a reasonable
belief that there was a compelling need to act and no time to procure a
The critical facts on which the defendant officers based their decision
to enter are undisputed. See Booker v. Ward, 94 F.3d 1052, 1058
(7th Cir. 1996) (when facts are undisputed,
probable cause is a question of law). To decide whether probable
cause existed as a matter of law, the court must closely examine the
information the officers had at the time of the search as they would
appear to a reasonable person in the position of the on-scene officers.
Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994).
Plaintiffs contend the information before the police officers is
susceptible to multiple inferences, and therefore the case should proceed
to trial. They argue the officers did not have probable cause to enter
the home because: (1) almost 50 minutes elapsed between the time the
alarm was triggered and the officers' entry; (2) the alarm was
accidentally triggered; (3) Officer Hasenfang did not use his siren or
MARS lights in responding to the call; (4) Officer Hasenfang did not
observe unusual movements inside or outside the home. Plaintiffs cite
Reardon v. Wroan, 811 F.2d 1025, 1028-29 (7th Cir. 1987). In
Reardon, summary judgment was reversed in part because the court
found there were genuine issues of material fact whether police officers
responding to a burglary call at a fraternity house during winter break
had probable cause to justify a warrantless entry. Id. at 1027,
citing Llaguno v. Mingley, 763 F.2d 1560, 1565 (7th Cir. 1985).
This case is distinguishable. The admissible supporting materials
introduced by plaintiffs do not challenge defendants' version of the
facts known to the officers at the scene. Plaintiffs' assertion that the
alarm could not be armed when a door was open is pure conjecture. See
Patterson v. Chicago Assoc. for Retarded Citizens, 150 F.3d 719,
724 (7th Cir. 1998) (plaintiff's speculation does not create issue of
fact). The officers did not know the alarm had been triggered
accidentally when they entered plaintiffs' home. See Illinois v.
Gates, 462 U.S. 213, 231,103 S.Ct. 2317 (1983) (only the
information known to officers at the time of the search is
material). Although Officer Hasenfang knew the call had "a lot of time
on it," the officers did not know that
the alarm was triggered 50 minutes earlier. Pi's Facts at ¶ 14.
The route Officer Hasenfang chose and his decision to finish dinner and
not use his siren and MARS lights are collateral facts, immaterial to
whether probable cause existed.
Thus, the facts are undisputed. Officer Hasenfang responded to a panic
alarm and a 911 call. He was told the call "had a lot of time on it," but
did not know how old it was. Id. at ¶ 14. Once he arrived at
the house, the alarm was still ringing. Although Officer Hasenfang did
not see any unusual movements inside or outside the house, he noticed
external signs of forced entry: the rear screen door was torn and
unsecured, the sliding glass door behind it was open and there appeared
to be scratches around the lock. There was no response to his
announcement of his presence. These facts establish the officers had
probable cause to search plaintiffs' home. Reardon, 811 F.2d at
1028-29; United States v. Jenkins, 329 F.3d 579, 581-82 (7th
Cir. 2003) (officer responding to vague 911 call and unsure if crime was
committed inside, properly entered under the exigent circumstances
exception when she discovered an unlocked door, heard "standing up and
falling down noise," and no one responded to her knock and announce);
United States v. Tibolt, 12 F.3d 965, 969 (1st Cir.
1995) (a burglar alarm justified warrantless entry); United
States v. Johnson, 9 F.3d 506, 509-10 (6th Cir. 1993)
(external signs of forced entry and lack of response from occupants
inside establish probable cause). The warrantless search was proper under
exigent circumstances. Reardon, 811 F.2d at 1029-30 (officers
entitled to summary judgment on exigent circumstances because the front
door was unlocked and they were responding to a burglary call).
Defendants contend plaintiffs' firearms were properly seized because
they were in plain view while the officers conducted a legal search.
See United States v. Langford, 314 F.3d 892,
894 (7th Cir. 2002); United States v. Brown, 79 F.3d 1499,
1508 (7th Cir. 1996) (plain view justifies seizure if the object's
incriminating nature is readily apparent). In response, plaintiffs merely
contest the validity of the search. Property that appears to be
contraband or evidence of a crime may be seized when it is visible to an
officer conducting a lawful search. Id Absent evidence
suggesting the firearms were not in plain view, the seizure of the
weapons was proper.
B. Theft of plaintiffs' personal property
Plaintiffs accuse defendant police officers of stealing mink coats,
cash and jewelry from their bedroom. Plaintiffs fail to provide any
admissible evidence to support their speculative accusation. Given the
failure to establish any disputed issue of material fact concerning the
purported theft, the court need not reach defendants' argument that theft
does not provide a basis for a constitutional deprivation claim under
42 U.S.C. § 1983.
C. Monell Claim
Initially, the court notes that plaintiffs improperly failed to provide
pinpoint citations in their Rule 56.1(b)(3)(B) statement of additional
facts and instead chose to refer vaguely to the "1993 through 2000
Biennial Reports, exhibit 20." See Pi's Facts at ¶¶ 54-60.
Local Rule 56.1 statements of fact must include specific citations to the
record. Plaintiffs' improper citation to the record makes it difficult to
sift through the reports' data and compare the parties' statistical
conclusions. Accordingly, the court did not rely on plaintiffs'
statistical conclusions when the purported foundation was unclear in
plaintiffs' 56.1(b)(3)(B) statement. See United States v. Norden
Enterprises, LLC, No. 01 C 8968, 2004 WL 42318, at *3-4 (N.D. Ill.
Jan. 6, 2004) (the Seventh Circuit has consistently and repeatedly upheld
a district court's discretion to require strict compliance with its local
rules governing summary judgment).
Turning to the merits of the claim, plaintiffs contend the illegal
search of their home and the theft of their personal property was the
result of the city's widespread practice of failing to properly train and
discipline its police officers. In order to prove a § 1983 claim
against the city, plaintiffs must establish they suffered a
constitutional injury caused by an official municipal policy or custom.
Monell v, Dep't of Social Services, 436 U.S. 658, 694,
98 S.Ct. 2018, 2037 (1978). As discussed above, plaintiffs fail to establish a
constitutional injury. Therefore, their claim must fail as a matter of
Even if plaintiffs could establish they suffered an actionable
deprivation, they fail to establish a Monell claim against the
city. Plaintiffs have not alleged their rights were violated as a result
of an official policy or decision by a policymaker. Accordingly, they
must establish that the city's alleged failure to discipline and train
its officers constitutes a "widespread practice that, although not
authorized by written law or express municipal policy, causes a
constitutional deprivation, and is so permanent and well settled as to
constitute a custom and usage with the force of law." Baxter by
Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir.
1994); Bd. of Commissioners of Bryan County v. Brown,
520 U.S. 397, 403,117 S.Ct. 1382 (1997) (Monell claim cannot be based on
simple respondeat superior). To trigger municipal liability,
plaintiffs must establish that the city adopted or condoned the
widespread practice. Wilson v. City of Chicago, 6 F.3d 1233,
1240-41 (7th Cir. 1993) A widespread policy is adopted or condoned if the
municipality was deliberately indifferent to complaints against its
officers and concerns about its training program. Wilson, 6 F.3d
at 1240-41; Cornfield by Lewis v. Consolidated High School Dist.
230, 991 F.2d 1316; City of Canton, Ohio v. Harris,
489 U.S. 378, 390, 109 S.Ct. 1197(1989).
Plaintiffs assert that the city did not aggressively investigate
complaints against its officers for illegal searches and seizures and
theft, and therefore the officers' behavior was condoned. Plaintiffs
advance the Webb Report, the Chicago Police Department Biennial and
Annual Reports, and the testimony of Lt. Tranckitello to establish that
the city was deliberately indifferent to a widespread practice of
unconstitutional searches and theft. Viewed in the light most favorable
to plaintiffs, the findings of these reports, as construed in plaintiffs*
statement of facts, only demonstrate that the present system is imperfect
and that the rate of sustained complaints is low. The reports do not
establish that the city was deliberately indifferent to complaints
against its officers. See Wilson, 6 F.3d at 1240.
Plaintiffs argue that similar data precluded summary judgment in
Garcia v. City of Chicago, No. 01 C 8945, at *7-8 (N.D. Ill.
March 20, 2003). In Garcia, the court found that issues of
material fact precluded summary judgment on the plaintiff's claim that
the city turned a blind eye towards the police department's use of
excessive force against citizens. Id. Garcia is distinguishable.
There, the plaintiff introduced expert testimony that Internal Affairs
investigations into excessive force complaints were conducted to protect
the image of the police department and were slanted in favor of police
officers. Id The plaintiff also introduced evidence suggesting
the lengthy duration of investigations was designed to dissuade citizens
from filing complaints and to protect officers. Id
Plaintiffs have submitted no direct evidence attacking the methodology
of police investigations. See Pl's Facts at ¶¶ 58-67. Indeed,
Lt. Tranckitello's testimony supports the opposite inference; generally
complaints against police officers are properly investigated.
Tranckitello Dep. at p. 17-19. Tranckitello's testimony does not suggest
process is designed to protect officers from constitutional claims.
Id. Nor does Tranckitello actually state that the officer
defendants' disciplinary histories demonstrate the police department was
deliberately indifferent to their conduct. Although plaintiffs cite
statistical data similar to that used in Garcia, because of
plaintiffs' inadequate citation to the record, their statistical evidence
cannot be placed in context. The 1997 Webb report suggests possible
changes in departmental procedure to combat corruption. Statistical data
in the Chicago Police Department Reports suggests that officer complaints
are investigated, and complaints are regularly sustained. Def's Facts at
Plaintiffs fail to produce evidence establishing that the purported
widespread practice led to an illegal search of their home and theft of
their property. The court is not required to sift through plaintiffs'
evidence to find a statistical pattern of undisciplined illegal searches
and theft complaints without guidance from the plaintiffs' statement of
additional facts. Absent evidence that the purported widespread practice
was adopted or condoned, or evidence that the purported practice was the
moving force of a constitutional injury, plaintiffs' Monell
claim fails as a matter of law. City of Canton, 489 U.S. at
379, 109 S.Ct. 1197.
III. Count II
Plaintiffs claim Officers Hasenfang, Montes and O'Leary conspired to
violate their constitutional rights by agreeing to illegally search their
home and steal personal property. To establish a conspiracy, plaintiffs
must demonstrate the existence of an agreement or acts "sufficient to
raise the inference of mutual understanding" and a "whiff' of the
assent must be apparent in the complaint. Admunsen v. Chicago
Park District, 218 F.3d 712, 718 (7th Cir. 2000), quoting Kunik
v. Racine County, Wisc., 946 F.2d 1574, 1580 (7th Cir. 1991). In
their Local Rule 56.1(b)(3)(B) statement of additional facts, plaintiffs
include a lone statement touching on their conspiracy claim. Plaintiffs
assert "Officer Hasenfang determined that the officers should enter and
search the premises." Pl's Facts at ¶ 30. This is insufficient. "[A]
claim of conspiracy cannot survive summary judgment if the allegations
are vague, conclusory, and include no overt acts reasonably related to
the promotion of the alleged conspiracy." Admunsen, 218 F.3d at
Plaintiffs have failed to raise a disputed issue of material fact.
Defendants are entitled to judgment as a matter of law on all claims.