The opinion of the court was delivered by: JOHN GRADY, District Judge
Before the court are three motions. For the reasons explained
below, (1) the motion of defendants Robert DeCianni and William
Peslak for summary judgment with respect to the plaintiffs in
Group I is denied; (2) the motion of certain defendants for
summary judgment with respect to the plaintiffs in Group II is
granted; and (3) the joint motion of the individual police
officer defendants for partial summary judgment is granted in
part and denied in part.
This case is a civil rights action brought by nearly eighty
plaintiffs against the Town of Cicero (the "Town") and seventeen
Cicero police officers. It arises out of an incident occurring on
September 2, 2000, at the home of Alejandro and Maria Concepcion Duran,*fn1 who were having a party to celebrate their
daughter's baptism. Plaintiffs are the Durans and their guests at
We will briefly outline the facts of this case. Party guests
began arriving at the Durans' home in Cicero in the late
afternoon of September 2, 2000. At about 8:00 p.m., there were as
many as seventy people at the party, which was in the back yard
of the home. The Durans provided food and drink for their guests,
including beer and wine, and some guests brought their own beer
as well. Around 9:30 p.m., the Cicero Police Department (to which
we will refer as the "Town") received a telephone call
complaining about the party. Officers Waldemar Cruz and Robert
DeCianni were sent to check on the party; they arrived at the
Durans' home and asked that cars be moved from the alley and that
the volume of the music be turned down. The officers then left. Shortly thereafter, the Town received a second telephone call
from a neighbor of the Durans complaining about the party.
DeCianni responded to the call from the police radio dispatcher
by returning to the Durans' home. At this time there were
approximately eighty or ninety people at the party. When DeCianni
arrived, people in the front yard began arguing with him.
Alejandro Duran argued that the music was not too loud and stated
that he had a right to have guests at his house. DeCianni radioed
the dispatcher and asked for additional officers to come to the
house, stating that the owner was being uncooperative.
Officer Michael McMahon was sent to the house. He became
involved in arguments with the party guests as well, so DeCianni
radioed the dispatcher to send a supervisor and other officers
because people were "getting unruly." Officer Anthony Lewandowski
arrived in a police wagon, followed by Officers David Richert and
Jason Stroud, then Officers Dino Vitalo and Rhonda Gross, and
then Sergeant Thomas Krummick (the aforementioned supervisor). In
front of the house, several verbal confrontations occurred
between the officers and the party guests, some of whom had moved
from the back yard to the front yard. There is no dispute that
there was shouting and use of profanities by both the officers
and the party guests;*fn3 however, it is disputed whether the officers or
the party guests were the aggressors.
According to DeCianni, Gonzalo Duran threw a can at him, and
DeCianni so informed Krummick upon his arrival. A short time
later, Gross yelled into her police radio that "all units" should
come to the scene immediately. The dispatcher stated that there
was an emergency and called for every Town officer to go to the
Durans' home, in addition to requesting assistance from the
Berwyn and Chicago police departments for a "gang fight." (When
and by whom the term "gang fight" was first used is unclear.) At
some point, Officer Cruz returned to the home, and others
arrived: Detective Attilio Fiordirosa and Officers Rudy Sirgedas,
Michael Kirby, Scott Harris, William Peslak, Miguel Jimenez, and
Thomas Kratochvil, as well as other officers who are not
defendants in this case.
The situation escalated into what the parties have referred to
as a "melee" or a "riot." Some plaintiffs claim that they were
hit, hit with asps (batons), shoved, knocked down, punched,
pushed, kicked, grabbed, and/or that they had food thrown at them
by the officers. Many plaintiffs contend that they were sprayed
with pepper spray*fn4 and that officers "verbally abused" them
with, among other things, ethnic slurs. Many plaintiffs also
contend that they were forced into the Durans' home and that
pepper spray was then sprayed into the home.
The officers maintain that they were attempting to control and
calm an angry crowd not just the party guests, but also various
neighbors of the Durans who had come out of their houses into the
street. Various officers concede that they used their asps and
pepper spray but argue that it was for the purpose of controlling
plaintiffs who were attacking, biting, resisting, and struggling
with them. Defendants concede that the officers were trying to
direct party guests into the house but dispute that any officer
sprayed pepper spray directly into the house. The discrete
confrontations between plaintiffs and the officers are too
numerous to describe here. Instead, we will set forth the
relevant facts where necessary infra in our discussion.
There are two existing videos of some of the events.*fn5
One was filmed by Onofre Barajas, a neighbor who lived across the
street from the Durans. Barajas was sitting outside on his front
porch when the officers arrived at the Durans' home. After the
officers told neighbors and onlookers to go inside their homes, Barajas
went inside and then began videotaping, from his window, the
events occurring outside on the street, on the sidewalk, and in
the Durans' front yard. The video is of insufficient quality or
brightness to discern much detail other than the fact that there
was a lot of activity and people milling about. It depicts a
number of squad cars arriving at the home and several officers
coming into the yard, where there were several party guests. At
one point officers can be seen directing people into the back
yard alongside the house, and someone can be heard shouting,
"Move! Move! Move! Move! Let's go! Move!" There is a lot of
shouting, screaming, and use of profanity; not much can be heard
clearly, except for the officers' directions to people to "get
inside the house," "get the fuck inside," "get the fuck in the
house," "go inside," and "get inside the house." Some officers
enter the house and then exit again shortly thereafter, some of
whom are escorting arrestees.
The other video was filmed by Luis Castaneda, who was the
professional videographer hired by the Durans to film the day's
events. Most of the video has little relevance because it depicts
the baptism and the pre-police-arrival party events. The party
scenes are of guests eating and drinking in the back yard in the
afternoon and evening. At 1:48:11, after a scene of the
cake-cutting in the back yard, a scene begins of officers
standing outside the front fence speaking to one of the plaintiffs.
Several party guests are standing around in the front yard and on
the front porch. It is very noisy, but not many individual sounds
can be heard. After about a minute, an officer is overheard
telling Castaneda, who is standing on the sidewalk outside the
yard, that he must leave. Castaneda gets into his car but
continues to film for a couple of minutes (not capturing much of
anything but guests on the front porch). At 1:52, Officer
Lewandowski opens the car door and demands that Castaneda give
him the videotape. Soon thereafter, the tape ends.
After the situation had calmed down somewhat, the officers
arrested seven of the plaintiffs Alejandro Duran, Armando
Duran, Adolfo Duran, Gonzalo Duran, Joel Uribe, Heriberto Uribe,
and Juan Carlos Uribe and brought them to the Town police
station. Armando Duran alleges that the jail keeper at the Cicero
police station lockup, defendant Walter Wirack, physically and
verbally abused him. It is alleged that Wirack also directed
racial slurs at the other plaintiffs who had been taken to the
Juan Carlos Uribe was released (evidently without being
charged), and while criminal misdemeanor complaints were signed
against Heriberto Uribe and Joel Uribe for obstructing a peace
officer, plaintiffs state that those charges were not prosecuted.
The four Durans, however, were prosecuted on charges of battery
and obstructing or resisting a peace officer; the case was tried to a
jury, and they were found not guilty.
The complaint in this case has gone through several
incarnations. The current complaint on file is the Fourth Amended
Complaint, which alleges the following claims: § 1983 excessive
force, false arrest, and denial of equal protection, brought by
all plaintiffs against the individual defendants (Counts I-III);
a Monell policy claim brought by all plaintiffs against the
Town (Count IV); violation of the Illinois Hate Crime Act,
brought by all plaintiffs (except for Alberto Duran Pineda,
Sergio Duran, Joel Rico Duran, Maria Marisol Rico Duran, and
Maria M. Hernandez (the "Pineda Group")) against all defendants
(Count V); malicious prosecution, brought by plaintiffs Alejandro
Duran, Armando Duran, Adolfo Duran, Gonzalo Duran, Heriberto
Uribe Sr., Joel Uribe, and Juan Carlos Uribe against the
individual defendants (Count VI); battery and intentional
infliction of emotional distress, brought by all plaintiffs
except the Pineda Group against the individual defendants (Counts
VII and VIII); spoliation of evidence and respondeat superior
claims, brought by all plaintiffs except the Pineda Group against
the Town (Counts IX and X); and an indemnification claim brought
by all plaintiffs against the Town (Count XI). Plaintiffs seek
compensatory and punitive damages as well as reasonable
attorney's fees and costs. The individual defendants have filed three motions for summary
judgment or partial summary judgment, which we now discuss. Two
of the motions refer to plaintiffs in certain "groups" on the
"List of Potential Trial Plaintiffs and Defendants" (the "List").
The List was created by defendants at the court's request in
order to simplify the analysis of summary judgment motions. The
List divides the plaintiffs into four Groups that have claims
against corresponding individual defendants. Group I consists of
plaintiffs who claim they were inside the Durans' house and
experienced ill effects from the pepper spray allegedly sprayed
by Officers DeCianni and Peslak. Group II consists of plaintiffs
who claim that they were inside the yard and were sprayed and
defendants who were initially gathered outside the yard and are
alleged to have used pepper spray, regardless of whether it can
be shown which plaintiff they sprayed. Group III consists of
plaintiffs who claim that they were assaulted by a particular
defendant in some manner other than the use of pepper spray and
the corresponding defendants. Group IV consists of plaintiffs who
claim false arrest and the defendants alleged to have caused the
Prior to defendants' filing of the List, plaintiffs had filed
two Tables: "Plaintiffs' Table of Plaintiffs and the Defendants
Responsible for Certain of Plaintiffs' Injuries" and "Plaintiffs'
Table of Defendants and the Plaintiffs They Damaged." The Tables further clarify plaintiffs' claims by specifying exactly which
plaintiffs are pursuing exactly which claims against the
individual defendants. We will refer to some of the details of
the Tables where appropriate.
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). In considering such a motion, the court construes the
evidence and all inferences that reasonably can be drawn
therefrom in the light most favorable to the nonmoving party.
See Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th
Cir. 1999). "Summary judgment should be denied if the dispute is
`genuine': `if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'" Talanda v. KFC Nat'l
Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
We will first address the status of the briefing of defendants'
motions. Defendants' current summary judgment motions were filed
in October 2004. Plaintiffs then filed a motion to strike
defendants' motions on the ground that the briefs were too
voluminous. We denied that motion and told plaintiffs they could file one response to all the motions (if they wished), the length
of which would not be limited. We indicated that plaintiffs'
counsel should use whatever format they believed would render
their responses most intelligible to the court. We set a February
18, 2005 due date for plaintiffs' responsive brief or briefs.
Thereafter, plaintiffs moved three times for extensions of time
to submit their responses. In view of the complicated nature of
the case and the multiple issues involved, each motion was
granted. The latest due date for the response was June 30, 2005.
That date passed without any brief from plaintiffs, and no motion
for another extension of time was filed. In early August 2005,
chambers staff contacted plaintiffs' counsel, who indicated that
plaintiffs intended to move for another extension of time.
Chambers staff informed plaintiffs' counsel that the next date
the court would be hearing motions would be September 7, 2005,
and that the motion for an extension of time should be noticed
for that date. September 7 passed without a motion being filed by
plaintiffs, as well as our next three motion hearings on
September 14, 21, and 28, 2005.
We have gone out of our way to give plaintiffs every
opportunity to respond meaningfully to the motions, and they have
failed to do so. A district court is entitled to, and indeed
must, enforce its deadlines, and it has substantial discretion to
manage its docket. See Reales v. Consolidated Rail Corp.,
84 F.3d 993, 996 (7th Cir. 1996) (holding that district court did not abuse
its discretion in denying plaintiffs a fourth extension of time
to respond to summary judgment motion and in proceeding to
decision on summary judgment).
Thus, we will now consider the substance of defendants' motions
without the benefit of a submission by plaintiffs. Of course, we
will fully analyze the merits of defendants' motions before
deciding them. See Fed.R.Civ.P. 56(e) (providing that if an
adverse party does not respond to a motion for summary judgment,
"summary judgment, if appropriate, shall be entered against
the adverse party") (emphasis added)). Because plaintiffs have
failed to respond to defendants' motions, those facts asserted in
defendants' statement of material facts that have been properly
supported with evidence are deemed admitted. See N.D. Ill.
Local Rule 56.1(b); Waldridge v. American Hoechst Corp.,
24 F.3d 918, 922-24 (7th Cir. 1994).
A. Motion for Summary Judgment on Behalf of Robert DeCianni
and William Peslak with Respect to Plaintiffs on List
The Group I plaintiffs allege that they were inside the house
and experienced ill effects from the pepper spray that was
purportedly sprayed into the back door of the Durans'
house.*fn7 Officers DeCianni and Peslak move for summary judgment on their
claims for resulting injuries.
The Officers' first argument is that they are entitled to
summary judgment on the facts. The evidence that DeCianni sprayed
into the house comes from a single plaintiff, Jose Refugio
Paredes (who is not one of the Group I plaintiffs). Similarly,
the evidence that Peslak sprayed into the house comes from a
single plaintiff, Maria Alicia Moreno (who is also not one of the
Group I plaintiffs). No other plaintiff can identify any
particular officer as having sprayed into the house. We will
refer to Jose Refugio Paredes as "Paredes" and to Maria Alicia
Moreno as "Moreno" in this section for convenience.
The evidence from Paredes and Moreno comes from the affidavits
that were filed by several plaintiffs after defendants filed the
first round of summary judgment briefs.*fn8 Over defendants'
objection, we permitted those affidavits to be filed, and we
denied defendants' subsequent motions to strike the affidavits.
DeCianni and Peslak contend that the statements in the affidavits
of Paredes and Moreno should not be allowed to create genuine issues of fact
on summary judgment because they contradict prior testimony in
interrogatories (Paredes) and at deposition (Moreno).
The Seventh Circuit has "long followed the rule that parties
cannot thwart the purposes of Rule 56 by creating `sham' issues
of fact with affidavits that contradict their prior" sworn
statements. Bank of Illinois v. Allied Signal Safety Restraint
Sys., 75 F.3d 1162, 1168 (7th Cir. 1996). "When a party has
given clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact, that party
cannot thereafter create such an issue with an affidavit that
merely contradicts, without explanation, previously given clear
testimony." Id. at 1170 (quoting Van T. Junkins & Assocs.,
Inc. v. U.S. Indus., Inc., 736 F.2d 656
, 657 (11th Cir. 1984)).
The rule "serve[s] an important purpose of weeding out
non-meritorious claims for which a trial is not necessary. . . .
[but] must be applied with caution." Flannery v. Recording
Indus. Ass'n of Am., 354 F.3d 632
, 638 (7th Cir. 2004). In light
of the jury's role in resolving questions of credibility,
A definite distinction must be made between
discrepancies which create transparent shams and
discrepancies which create an issue of credibility or
go to the weight of the evidence. . . . To allow
every failure of memory or variation in a witness's
testimony to be disregarded as a sham would require
far too much from lay witnesses and would deprive the
trier of fact of the traditional opportunity to
determine which point in time and with which words
the witness . . . was stating the truth. Variations
in a witness's testimony and any failure of memory throughout the course of discovery create an
issue of credibility as to which part of the
testimony should be given the greatest weight if
credited at all.
Bank of Illinois, 75 F.3d at 1169-70 (quoting Tippens v.
Celotex Corp., 805 F.2d 949
, 953-54 (11th Cir. 1986)). Stated a
bit differently, the assessment is "whether a subsequent
statement so squarely contradicts an earlier one as to create
only a sham issue of fact." Bank of Illinois, 75 F.3d at 1170.
A "contradiction" exists only when the two statements are
"inherently inconsistent" and not when the later statement merely
clarifies an earlier statement that is ambiguous or confusing or
is based on newly discovered evidence. See Flannery,
354 F.3d at 638; Bank of Illinois, 75 F.3d at 1171-72.
We begin with Paredes, whose affidavit states in relevant part:
3. Defendant Robert DeCianni sprayed me in the face
with pepper spray for no reason. I was holding my
son, Jose Paredes, Jr., then age 2, in my arms at the
time. Jose was sprayed with pepper spray. My
daughter, Amanda Paredes, then age 9, was holding
onto my leg at the time. Amanda was sprayed with
pepper spray as well.
4. I saw Robert DeCianni spray pepper spray into the
rear door of the Duran home and then close the door.
(Affidavit of Jose Refugio Paredes, Ex. 135 of Plaintiffs'
Exhibits in Support of Plaintiffs' Table of Defendants.) Defendants assert that Paredes' earlier answers to
interrogatories contradict these statements. Defendants point to
Interrogatory No. 12 and the answer, which are as follows:
INTERROGATORY NO. 12: Identify each person you
claim to be responsible for causing your injury(ies)
. . ., and identify with particularly [sic] how each
person acted to cause your injury. If you are unable
to identify each person by name, provide a
description of the individual, . . . and/or the
letter of the photograph depicting the person in the
photograph reproductions previously supplied in
ANSWER: I was sprayed, but do not recognize who did
it. There were many police officers. Plaintiff relies
on identification made by other plaintiffs.
(Plaintiff Jose Refugio Paredes's Responses to the Individual
Defendants' Interrogatories, Ex. 35 of Plaintiffs' Exhibits in
Support of Plaintiffs' Table of Defendants.) Defendants also
point to Paredes's answers to interrogatories on behalf of his
son and daughter, Jose and Amanda, in which Paredes stated that
he did not know who was responsible for Jose and Amanda's
injuries and was relying on identification made by other
According to defendants, at the time the interrogatories were
answered, plaintiffs had access to photographs of the officers as
well as the two videotapes of the events on September 2, 2000 (in
which DeCianni is visible). Moreover, DeCianni had sat for two
videotaped depositions. Defendants contend that the "mysterious
identification of Officer DeCianni by someone who could not
previously identify him, despite having access to photographs,
live testimony and videotape, renders the testimony dubious and of no
weight." (Mem. in Support of Motion No. 1 at 5.)
There are two statements in Paredes's affidavit that must be
compared to his prior interrogatory answers: (1) DeCianni sprayed
him in the face; and (2) DeCianni sprayed into the house and then
closed the door. The second statement is really the only
statement that is critical to this particular motion; the first
statement goes only to Paredes's own claim against DeCianni and
not that of the Group I plaintiffs. Nonetheless, we will have to
address the first statement in any event, and might as well do so
"I was sprayed, but do not recognize who did it" (emphasis
added) is a statement that Paredes, at that particular point in
time, was unable to identify who sprayed him. Paredes's later
identification of DeCianni as having sprayed him in the face does
not strike us as being so "inherently inconsistent" with earlier
having been unable to identify DeCianni as to constitute a sham.
Identification of the officer who injured him is in part a
function of Paredes's memory. In Bank of Illinois, the Seventh
Circuit warned against "allow[ing] every failure of memory or
variation in a witness's testimony to be disregarded as a sham."
75 F.3d at 1170 (quoting Tippens, 805 F.2d at 953). This
variation in testimony creates an issue of credibility that
defendants will be free to point out at trial, but it does not
rise to the level of an "inherent inconsistency" that requires it to be disregarded on
Paredes's second statement, which is more important for
purposes of this motion, is that DeCianni sprayed into the house.
Paredes is not one of the Group I plaintiffs, so he does not
claim that he was in the house at the time and he does not claim
that he himself was injured by this particular act of spraying
into the house. Paredes was asked in Interrogatory Number 12 to
identify who caused his particular injuries, not the injuries of
others. Therefore, his statement that he did not recognize who
caused his injuries does not conflict with his statement that he
saw DeCianni spray into the rear door of the house and then shut
the door. To the extent that defendants contend that the
statements conflict simply because Paredes identified DeCianni as
doing something in particular whereas earlier he could not
identify him at all, our analysis regarding Paredes's first
We move on to Moreno, whose affidavit states in pertinent part:
3. I was in the backyard holding my son, Jose Adrian
Moreno, and I was sprayed indirectly with mace.
. . .
5. Thereafter, I saw William Peslak go up the back
stairs and I followed him. I saw William Peslak open
the door that enters on the kitchen and spray mace
into the kitchen. I then heard screams. William
Peslak turned to me and sprayed me in the face with
mace and told me to get out. I was holding my son,
Jose Adrian Moreno, then one year old, in my arms at
the time and he was covered with spray. (Affidavit of Maria Alicia Moreno, Ex. 132 of Plaintiffs'
Exhibits in Support of Plaintiffs' Table of Defendants.)
Defendants argue that the affidavit contradicts Moreno's
deposition testimony (which was provided through an interpreter),
the relevant portion of which is as follows:
Q. Now, you said in your interrogatory answers that
you were sprayed with pepper spray, is that correct?
A. Not directly, but from what was there, I got it
and also my child did.
. . .
Q. You said that you weren't sprayed directly by
spray but that you still had the effects of spray,
and just because we want the record clear, could you
tell us what you meant by that?
A. Well, I was in the back in the yard with my child.
Because my husband was in the front. He was looking
for the other children. I don't even know how the
policemen got directly throwing the tables.
I was sitting down giving cake to my child. The
policeman came behind Gonzalo with the spray. I heard
that the people were screaming. I heard the people
saying that they were throwing spray, and they were
crying. And I know they throwed the spray on Gonzalo
maybe because they wanted him to fall down. I don't
I was able to put my baby with his head in the back.
It didn't fall on my eyes, but it fell uh-huh it
didn't fall directly. I closed my eyes. I went to the
side. If I hadn't covered myself, it would have hit
my eyes. . . . That's how it happened.
(Tr. of Maria Alicia Moreno Dep. at 7-9.)
As with Paredes's affidavit, there are two statements in
Moreno's affidavit that must be analyzed separately, and the
second statement is more pertinent to the instant motion: (1)
Peslak sprayed her in the face; and (2) Peslak opened the door leading
to the kitchen and sprayed into the kitchen.*fn9 The first
statement squarely contradicts Moreno's earlier deposition
testimony. Moreno was asked if she was sprayed, and she
responded, "not directly." When she was again asked what she
meant (prefaced by the introductory phrase "you said that you
weren't sprayed directly"), she described feeling the effects of
pepper spray that had been used in the yard. Moreno did not say
that she was ever sprayed directly in the face, let alone sprayed
directly by Peslak. Therefore, the statement that "William Peslak
turned to me and sprayed me in the face with mace" will be
stricken from Moreno's affidavit and disregarded.
The statement that Peslak sprayed into the kitchen, on the
other hand, does not contradict the above-quoted deposition
testimony. It pertains to a completely different subject than the
manner in which Moreno was sprayed: what Moreno witnessed that
injured others. Defendants do not point to any follow-up
questions they asked Moreno, such as "Did you see anyone else
getting sprayed?", and we can find none in the transcript
excerpt. Moreno's statement that Peslak opened the door to the kitchen and
sprayed into the kitchen will not be stricken.
Officers DeCianni and Peslak's second argument is that they are
entitled to qualified immunity on the excessive force claims for
the alleged spraying of pepper spray into the house. The
qualified immunity analysis has two parts. We consider (1)
whether the alleged conduct establishes a constitutional
violation; and (2) whether the constitutional standards were
"clearly established" at the time of the events. See Green v.
Butler, 420 F.3d 689, 700 (7th Cir. 2005).
As for the "constitutional violation" prong, plaintiffs
maintain that the spraying of pepper spray into the house
violated the Fourth Amendment. Defendants argue that the Group I
plaintiffs cannot make out a Fourth Amendment claim because they
were not seized and that plaintiffs' claims therefore fall under
the Fourteenth Amendment. Plaintiffs have a higher burden under
the Fourteenth Amendment analysis because they must prove that
the officers' conduct "shocks the conscience"; under the Fourth
Amendment, the officers' conduct is assessed by the "objective
reasonableness" standard. See County of Sacramento v. Lewis,
523 U.S. 833 (1998); Graham v. Connor, 490 U.S. 386 (1989).
During oral argument on defendants' initial motions for summary
judgment, we indicated that we were likely to reject defendants'
argument that there was no seizure of the Group I plaintiffs and
provided our reasoning. Our view has not changed.
Defendants characterize the Group I plaintiffs as falling into
three categories: (1) those who were already inside the house
when the spraying took place; (2) those who went inside the house
when the melee began outside; and (3) those who went inside the
house because they heard a police officer tell people to go
inside.*fn10 According to defendants, plaintiffs in the first
two categories cannot make out a Fourth Amendment claim because a
seizure occurs only when an individual's freedom of movement is
terminated by means that are intentionally applied, and neither
officer took any action to seize plaintiffs who were already
inside the house or who voluntarily went inside the house. (Mem.
in Support of Motion No. 1 at 11.) As to the third category of
Group I plaintiffs, defendants contend that there is no evidence
that DeCianni or Peslak "ordered these Plaintiffs into the house
or acted in concert with some other officer who may have ordered
the Plaintiffs into the house." (Id.)
A seizure can occur when an officer "by means of physical force
or show of authority has in some way restrained the liberty of a citizen." United States v. Mendenhall, 446 U.S. 544, 552
(1980) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)). A
person is "seized" under the Fourth Amendment "only if, in view
of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave. Examples of circumstances that might indicate a seizure,
even where the person did not attempt to leave, would be the
threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled." Id.
Defendants are correct that some of the Group I plaintiffs were
already inside the Durans' home before the officers arrived.
There is evidence that when the officers arrived, several
additional plaintiffs who were outside in the yard were told by
officers to "get inside the house" and "get the fuck inside."
Those commands can be heard on the Barajas videotape. At the
time, there were numerous police officers in the yard, outside
the yard, alongside the house, and entering and exiting the
house. In addition, several plaintiffs, including Juan Carlos
Uribe Pineda and Joel Uribe, testified at deposition that they
were told to "get the fuck inside" and that they complied by
going inside. Alejandro Duran testified at deposition that an
officer or officers told several plaintiffs to go inside, that
the plaintiffs did not want to go inside, and that the officers pushed people into the house.
(Tr. of Alejandro Duran Dep. at 123.) Other plaintiffs, including
Jesus Uribe, Juana Soto, and Serafin Rios, state in their
affidavits that they were pushed or forced inside the house by
officers. Officer Miguel Jimenez testified that after he arrived
at the scene and went up the front stairs to the porch, he heard
other officers "asking" people to go inside, and that several
plaintiffs complied. (Tr. of Miguel Jimenez Dep. at 11-12.)
Once the officers managed to get some of the plaintiffs into
the house, there is evidence that everyone who was inside the
house was instructed to stay in the house. (Tr. of Alejandro
Duran Dep. at 123; Tr. of Adolfo Duran Dep. at 62.) Several Group
I plaintiffs (Alejandro Duran, Alma Rodriguez, Juan Carlos Uribe
Pineda, and Heriberto Uribe Sr.) testified at deposition that
shortly thereafter, pepper spray was then sprayed under the back
door. As discussed supra, Jose Refugio Paredes and Maria Alicia
Moreno have stated in their affidavits that they saw DeCianni and
Peslak spray into the back door (and, in DeCianni's case, then
shut the door).
We have no doubt that those plaintiffs who were ordered or
forced inside the house were seized. Their liberty was
restrained, and there is evidence that several of the
Mendenhall factors were present: the threatening presence of
numerous police officers; the physical pushing of some of the
plaintiffs into the house; and the officers' use of a tone of voice and profanity, which indicated
that compliance with their orders might be compelled.
Furthermore, given the existence of evidence that the Group I
plaintiffs were instructed by officers to remain inside the
house, whether they were told to go inside or whether they had
gone inside earlier of their own accord, there is no need to
categorize the Group I plaintiffs into three groups as defendants
have done. All of the Group I plaintiffs were seized when they
were told to stay inside, regardless of how the plaintiffs got
there. The plaintiffs who had already been in the house likely
could hear what was going on outside and could see what was
happening with the plaintiffs who were ordered inside. In view of
all the circumstances, a reasonable person in the plaintiffs'
shoes would not have believed that he or she was free to leave
the house. We are not persuaded by defendants' contention that
the Group I plaintiffs were "just being moved away from the
scene." (Mem. in Support of Motion No. 1 at 12.) The interior of
the Duran house was part of the "scene."
The spraying of pepper spray into the house, a small, enclosed
space, constituted another seizure. It was another means of
physical force and a show of authority that restricted
plaintiffs' movement. See Yelverton v. Vargo, Nos.
3:04CV556-T(WO) & 3:04CV562-T(WO), 2005 WL 2179784, at *2 (M.D.
Ala. Sept. 7, 2005) (holding that police officer's act of
pepper-spraying a suspect constituted a seizure because it was an
application of physical force to restrain movement). A reasonable jury could conclude
from the evidence that the spraying was for the purpose of
keeping the plaintiffs at bay inside the house. (Another
conclusion could be that it was a deliberate action intended to
cause harm; that determination would meet the Fourteenth
Amendment standard, see Lewis, 523 U.S. at 848.) There is
evidence that, after the spraying, the plaintiffs did not leave
the house until instructed by officers to leave or told by
officers that they were free to leave.
Alternatively, the spraying of pepper spray into the house
could be characterized as an act of force that occurred during a
seizure and thus still must be evaluated under the Fourth
Amendment. Defendants contend that there is no evidence that
DeCianni or Peslak themselves ordered anyone into the house or
knew that other officers had ordered people inside the house.
However, viewing the evidence in the light most favorable to
plaintiffs, a reasonable jury could conclude that the officers
were aware that the Group I plaintiffs had been ordered into the
house. At least one plaintiff, Alma Rodriguez, states that Peslak
and DeCianni were present when she was pushed into the house.
We conclude that plaintiffs have made a showing that the
spraying of the Group I plaintiffs with pepper spray occurred in
the context of a seizure and constituted a violation of the
Fourth Amendment. DeCianni and Peslak contend that even if plaintiffs'
allegations, if true, establish a constitutional violation, there
was no violation of a clearly established right. (Or, in other
words, it would not be clear to the reasonable officer that his
conduct was unlawful.) Defendants assert that "there is no
clearly established law that spraying pepper spray in the doorway
to deter egress during a riot violates the Fourteenth Amendment."
(Mem. in Support of Motion No. 1 at 15.)
First, we are analyzing plaintiffs' claim under the Fourth
Amendment, not the Fourteenth, so defendants' conduct is
evaluated for objective reasonableness. Moreover, defendants'
framing of the "clearly established law" inquiry is much too
narrow. (Defendants' characterization of the events as a "riot,"
moreover, would likely be disputed by plaintiffs.) "The salient
question is not whether there is a prior case on all fours with
the current claim but whether the state of the law at the
relevant time gave the defendants fair warning that their
treatment of the plaintiff was unconstitutional." Green,
420 F.3d at 701 (7th Cir. 2005) (quoting McGreal v. Ostrov,
368 F.3d 657, 683 (7th Cir. 2004)). At the time of the events in this
case, it was clearly established that "police officers do not
have the right to shove, push, or otherwise assault innocent
citizens without any provocation whatsoever." Clash v. Beatty,
77 F.3d 1045, 1048 (7th Cir. 1996). Pepper-spraying is a type of
"assault." A clearly-established constitutional right can be demonstrated
not only by pointing to a closely analogous case that established
a right to be free from the type of force the police officers
used on plaintiffs, but also by "showing that the force was so
plainly excessive that, as an objective matter, the police
officers would have been on notice that they were violating the
Fourth Amendment." Id. Here, the facts could support a finding
that defendants used plainly excessive force by assaulting
plaintiffs with pepper spray without justification (when those
plaintiffs were confined in the house and not provoking the
officers). Under the facts, there was no reason for the officers
to believe that spraying into the house was justified. We
therefore conclude that Officers DeCianni and Peslak are not
shielded by qualified immunity from the Group I plaintiffs' claim
of excessive force in spraying into the Durans' house.
B. Motion for Summary Judgment on Behalf of Individual Police
Officer Defendants with Respect to Plaintiffs on List Two
Ten officers Dino Vitalo, Waldemar Cruz, Robert DeCianni,
Michael McMahon, David Richert, Jason Stroud, Rhonda Gross,
Anthony Lewandowski, Thomas Krummick, and Scott Harris move for
summary judgment on the "failure to intervene" claim of the Group
II plaintiffs. (These are the all of the defendants against whom
the Group II plaintiffs assert failure to intervene claims, see
Plaintiffs' Table of Defendants and the Plaintiffs They Damaged.)
The Group II plaintiffs Alejandro Duran, Anna Maria Duran,
Gonzalo Duran, Luz Maria Pineda, Ana Rodriguez, Lisbeth Moreno, Ruben
Pineda, Silvia Pineda, Marlene Pineda, Edwin Pineda, Kalyn
Pineda, Lorena Paredes, Jorge Enrique Perez, Sr., and Armando
Duran are those who claim that they were pepper-sprayed when
officers first entered the yard of the Durans' home. The Group II
plaintiffs allege that they were sprayed, but they cannot
identify their assailant; the Group II defendants are those
officers who were in the yard.
"An officer who is present and fails to intervene to prevent
other law enforcement officers from infringing the constitutional
rights of citizens is liable under § 1983 if that officer had
reason to know: (1) that excessive force was being used, (2) that
a citizen has been unjustifiably arrested, or (3) that any
constitutional violation has been committed by a law enforcement
official; and the officer had a realistic opportunity to
intervene to prevent the harm from occurring." Yang v. Hardin,
37 F.3d 282, 285 (7th Cir. 1994).
Defendants contend that the only evidence is that they were in
the vicinity when alleged constitutional violations were taking
place and that there is no evidence that any of them were in a
position to prevent the violations from occurring. Defendants
point out that the front yard of the Durans' home is extremely
small and was teeming with people as many as seven police
officers and over twenty party guests which makes it even less
likely that any officer was in a position to know that another officer was
infringing or about to infringe one of the plaintiffs'
constitutional rights and had a realistic opportunity to
intervene to prevent the harm from occurring.
As with DeCianni & Peslak's motion, we previously indicated to
the parties our view of this argument. We agree with defendants.
We recognize that the intervention issue is generally an issue
for the jury, see Lanigan v. Village of East Hazel Crest,
110 F.3d 467, 478 (7th Cir. 1997), but the lack of evidence here
(considering that we are treating defendants' statement of
material facts as having been admitted) is such that no
reasonable jury could conclude that any particular one of these
officers had a realistic ability and opportunity to intervene to
prevent any particular alleged spraying. There is no evidence
that any of the spraying of any plaintiff occurred for anything
other than a very short period of time seconds which reduces
the window of time available for a reasonable opportunity to
intervene to almost none. More importantly, there is no evidence
regarding exactly where any given officer was positioned when a
particular plaintiff was purportedly sprayed. There simply is no
evidence regarding who failed to intervene with respect to
The Group II defendants are entitled to summary judgment on the
Group II plaintiffs' failure to intervene theory.
C. Motions of Individual Police Officer Defendants for
Partial Summary Judgment Each of the individual police officers moves for summary
judgment on certain claims which, in their view, are insufficient
to be tried and/or on which they argue qualified immunity
applies.*fn11 The following claims of the Fourth Amended
Complaint are asserted against the individual defendants: Counts
I (excessive force), II (false arrest), III (equal protection), V
(Hate Crime Act), VI (malicious prosecution), VII (battery), and
VIII (intentional infliction of emotional distress, or
IIED).*fn12 Plaintiffs' Table of Defendants, however,
effectively (and considerably) narrows which and whose claims are
being asserted against which defendants, and we have relied on
that Table.*fn13 The Table, however, is not part of the
Fourth Amended Complaint, which alleges all of the above-listed
claims against all of the individual defendants. We still need to
make summary judgment determinations regarding those claims.
Plaintiffs' Table does not contain a column for claims for
violation of the Illinois Hate Crime Act. We are unsure if the
omission signifies that plaintiffs intend not to pursue the
claim. Giving plaintiffs the benefit of the doubt, and in an
abundance of caution, we will examine the evidence regarding the
individual defendants' conduct and determine if it creates a genuine issue
for trial as to any plaintiff on the Hate Crime Act claims.
Before addressing each of the individual defendants' motions,
we will first turn to an issue that applies to all defendants
against whom state-law battery and intentional infliction of
emotional distress claims are asserted. Defendants maintain that
these claims are "odd" in that plaintiffs allege: "The defendants
acted in concert with a common purpose and contributed to the
same indivisible injuries sustained by plaintiffs." (Fourth
Amended Complaint, ¶¶ 157, 162.)
In the court's view, part of this allegation, contained in
Counts VII and VIII, must be stricken as immaterial pursuant to
Federal Rule of Civil Procedure 12(f).*fn14 "Immaterial"
matter is that which has no essential or important relationship
to the claim for relief. See Chicago Printing Co. v.
Heidelberg USA, Inc., No. 01 C 3251, 2001 WL 1646567, at *1
(N.D. Ill. Dec. 21, 2001) (Grady, J.). Plaintiffs did not sustain
"indivisible injuries"; each individual plaintiff allegedly
sustained his or her individual injury allegedly inflicted by
one or more particular individual defendants. The allegation
that defendants "contributed to the same indivisible injuries
sustained by plaintiffs" has no essential relationship to the
battery or IIED claims. It constitutes surplusage that serves only to confuse matters. It is therefore
stricken from Paragraphs 157 and 162 of the Fourth Amended
As for the "acting in concert" component of the allegation,
there is no evidence that the defendants were consciously acting
in concert to injure any particular plaintiff. Therefore,
summary judgment for the individual defendants and against the
plaintiffs will be granted as to the allegations in Paragraphs
157 and 162 (the battery and IIED claims) that defendants "acted
in concert with a common purpose."
1. Detective Attilio Fiordirosa
There is no evidence supporting any plaintiff's claim against
Fiordirosa for excessive force, false arrest, denial of equal
protection, violation of the Illinois Hate Crime Act, battery, or
IIED. Accordingly, summary judgment will be entered in favor of
Fiordirosa and against all plaintiffs*fn15 on Counts I, II,
III, V, VII, and VIII.
As for Count VI, malicious prosecution, plaintiffs' Table
reflects that only Gonzalo Duran is asserting a claim against
Fiordirosa for malicious prosecution. Therefore, summary judgment will be entered in favor of Fiordirosa and against the other
plaintiffs asserting malicious prosecution claims in Count VI.
The elements of a malicious prosecution claim under Illinois
law are as follows: (1) plaintiff was subjected to judicial
proceedings; (2) for which there was no probable cause; (3) the
defendant instituted or continued the proceedings maliciously;
(4) the proceedings were terminated in the plaintiff's favor; and
(5) there was an injury. See Reed v. City of Chicago,
77 F.3d 1049, 1051 (7th Cir. 1996).
Gonzalo Duran's testimony is that after he was brought to the
police station, he was interrogated in English, which he did not
understand, so he just kept saying "yes." He was not advised of
his rights in Spanish, nor was a right-to-counsel waiver form
provided in Spanish, nor was a translator provided. Detective
Fiordirosa and Officer Sirgedas asked him to sign a typed
statement (in English) about the evening's events, and Gonzalo
signed the statement: "He brought it to me. He told me sign it
here, and I did. I didn't see what it said. I don't know how to
read English. So why would I read it for. I just signed it. He
told me to sign it here, and I did. That's it." (Tr. of Gonzalo
Duran Dep. at 127.) (It appears that when Gonzalo says "he," he
is referring to Fiordirosa.)
The statement signed by Gonzalo reads in part: "Det's R.
Sirgedas/Fiordirosa had the opportunity to interivew [sic] a one Gonzalo Duran . . . in regards to the incident. . . . Gonzalo
stated that he didn't want to be arrested so he pushed [an]
officer and then started fighting with him. During the
altercation another officer assisted the officer in attempting to
place Gonzalo in cuffs. Gonzalo related that that [sic] during
the struggle he bit both officers on their arms trying to stop
from being arrested." (Individual Defendants' Exhibit WW.)
Thereafter, Gonzalo was prosecuted for battery to and resisting
a police officer. The case was tried to a jury, and Gonzalo was
found not guilty. It appears that the statement he signed was
entered into evidence at the trial; defendants point out that no
motion was made to suppress the statement. At the trial, Gonzalo
testified. Among other things, he stated that he struggled with
two officers and that he bit one of the officers. (He denies
biting the other officer.)
Fiordirosa was not the arresting officer, nor did he testify at
the criminal trial. The battery was alleged to have been
committed on another officer or officers, so Fiordirosa was not
the complainant. He is simply alleged to have told Gonzalo to
sign a statement containing admissions, which Gonzalo claims he
signed without reading. Plaintiffs characterize the conduct as
having "drafted a false confession" and "fraudulently inducing"
or "coercing" Gonzalo to sign it. In light of Gonzalo's testimony
at the criminal trial, ...