The opinion of the court was delivered by: Blanche M. Manning United States District Judge
The City of Chicago has filed a motion for summary judgment as to Count II of the plaintiffs' Fourth Amended Complaint and its counterclaim. For the reasons stated below, the motion is denied.
The complaint at issue is the Fourth Amended Complaint. Count I against the Bureau of Alcohol, Tobacco and Firearms (ATF) was settled. In Count II, which is the subject of the City's motion for summary judgment, the plaintiffs allege that the City of Chicago and former Chicago police officer Joseph Miedzianowski violated plaintiffs' constitutional rights under § 1983. Specifically, the plaintiffs allege that the City's widespread custom and practice of failing to properly supervise, investigate and discipline its officers allowed Miedzianowski to violate the plaintiffs' First Amendment rights when he threatened the plaintiffs and made false statements about them in retaliation for their disclosure of Miedzianowski's criminal activities. Finally, Count III is a claim for defamation against Miedzianowski. Further, the City has filed a counterclaim seeking a declaratory judgment that it is not required to pay any judgment that may be entered against Miedzianowski.
Defendant Miedzianowski was, at all times relevant to the complaint, employed by the City of Chicago as a police officer. The plaintiffs have alleged a claim against the City under 42 U.S.C. § 1983, and the court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(3).
A. Plaintiffs' Monell Allegations
Prior to engaging in an in-depth discussion of the facts in this case (the plaintiffs' statement of additional facts is over 340 paragraphs long), it makes sense to properly frame the issue in an attempt to streamline the facts that need to be addressed.
The plaintiffs' § 1983 claim against the City alleges that it is liable to the plaintiffs for allowing Miedzianowski to violate their First Amendment rights when he retaliated against them for disclosing Miedzianowski's misconduct to supervisors. Specifically, the plaintiffs allege that the City and the Chicago Police Department ("CPD") were deliberately indifferent to the violations of the plaintiffs' First Amendment rights because of their policy of failing to investigate, discipline, and supervise their members despite the City and CPD's knowledge of misconduct. As further alleged by the plaintiffs, the City failed to conduct a legitimate investigation into plaintiffs' allegations against Miedzianowski, and top officials from the CPD approved the CPD Internal Affairs Division's ("IAD") sham investigative procedures which interfered with the plaintiffs' First Amendment rights.
As part and parcel of this argument, the plaintiffs also refer throughout their response brief to the alleged "code of silence," or "blue wall of silence" which they allege exists within the CPD. According to the plaintiffs, this code requires that officers not report one another's misconduct to their supervisors, not stop such misconduct or criminal conduct, not testify against one another, and even assist a fellow officer to evade detection by the authorities. The plaintiffs contend that the City is fully aware of this code of silence and does nothing to prevent officers from abiding by it. As a result, the plaintiffs' argument goes, the City's acquiescence in the blue wall of silence allowed Miedzianowski to engage in his campaign of retaliation against the plaintiffs without fear of being reported or sanctioned.
Thus, the ultimate issue that the court is concerned with in the instant motion is if there is any genuine issue of material fact as to the City's alleged systemic failure to investigate, supervise and discipline its officers.
B. Facts Relating to the Plaintiffs' Claims
Klipfel was hired as a special agent, criminal investigator with the Bureau of Alcohol, Tobacco and Firearms ("ATF") in 1976. Klipfel was promoted to a group supervisor position in February 1990, and at all relevant times, she reported to Assistant Special Agent in Charge (ASAC) Jimmie Adamcik or ASAC Tom Lambert and Special Agent in Charge (SAC) Joe Vince.
In March 1990, Klipfel initiated the creation of a Latin gang task force, which enlisted the assistance of Chicago police officers. Miedzianowski was detailed to work with ATF as part of the gang task force. On or about February 20, 1992, Klipfel, together with an ATF special agent, Miedzianowski, and other officers from the Chicago police department, executed a search warrant on the home of Darrin Pippin.
Pippin, a fugitive, informed Klipfel that Miedzianowski and another Chicago police officer stole 51 $100 bills, a gold cross necklace, a pinkie ring, two bracelets and a brown leather coat from the residence. Pippin also related to Klipfel that he had about $28,000 in cash and a gun in a safety deposit box at Albany Park bank, which Miedzianowski was planning to steal using a key he had found during the execution of the search warrant.
That night, Klipfel confronted Miedzianowski with these allegations. According to Klipfel, Miedzianowski kicked her car and screamed:
"Bitch, you're stupid. There are four of us here who will say you stole the money and stole off every search warrant you've ever been on. Four against one. Your husband and you both work in the City. Remember that, always remember that. And you better watch your darling kids. Your house could get lit up. That bastard (pointing to Pippin) will never back you up after he gets his ass poked in jail, and 'she' (SA Jolley) will back us on everything. She'll be our witness. Nothing happened, but the only thing that will happen is you'll get fired. Gamboa's going to hear about this. Adamcik will back us all the way and your ass will be out in the street. We own fucking Adamcik."
Klipfel immediately asked her supervisor Adamcik to send Miedzianowski and Galligan (another CPD officer who had been detailed to ATF) back to their unit in the CPD. Klipfel then began reporting acts of police corruption (by Miedzianowksi and others) to her supervisors and to ATF personnel. For example, she reported to Vince and Adamcik that Miedzianowski had threatened to kill Klipfel, Casali and their children. Later in 1992, Klipfel reported to ATF personnel the alleged sexual harassment of another employee by that employee's supervisor, John Gamboa, who was a close friend of Miedzianowski. Soon thereafter, Klipfel reported to ATF personnel that Vince and Adamcik were accepting gifts and favors from the CPD officers assigned to ATF who were alleged to be involved in illegal dealings with Chicago street gangs.
Then, in or about September 1993, Klipfel reported to a representative of the U.S. Attorneys' Office information she had received that Miedzianowski had coerced an ATF confidential informant into making false allegations to ATF IA and CPD IAD about Agent Klipfel in order to deflect a CPD IAD investigation of the Chicago police officers. According to the confidential informant, Miedzianowski fabricated false allegations against Klipfel that the informant then reported to CPD IAD and ATF IA.
Miedzianowski told the informant that Klipfel was "messing everything up" and that if Klipfel was not silenced, Miedzianowski's criminal conduct would become public. The informant believed that Miedzianowski would kill the informant if he refused to file a false report against Klipfel. The plaintiffs later learned that Miedzianowski drove the informant to CPD IAD, and sat next to the informant during his IAD interview. The informant gave the same false statement regarding Klipfel to ATF IA.
On or about May 24, 1976, Casali was hired as a special agent, criminal investigator, by the ATF. He became a group supervisor in 1991, and in 1997 he became ATF Firearms Instructor Coordinator for the Chicago Field Division and has held that position ever since. At all relevant times, Casali reported to Adamcik and Vince.
In April 1992, Casali learned from an informant that "Joe from ATF" (presumably Joseph Miedzianowski) was involved in supplying a gang with firearms and narcotics stolen from search warrants. In or about early June 1992, Casali reported this information to Vince. Vince told Casali not to contact anyone else with the information.*fn2 On or about June 22, 1992, Casali repeated the information to Vince and Adamcik, who asked Casali to identify any others who knew of these allegations and ordered Casali not to contact ATF IA or the FBI, the authorities that had primary jurisdiction to investigate his allegations of police corruption.
On or about June 26, 1992, Casali reported to the U.S. Attorneys' office in Chicago, Illinois, the information regarding Miedzianowski. On or about July 6, 1992, Casali provided Vince, Adamcik and a representative of the U. S. Attorney's Office with a taped, undercover telephone conversation with a suspect who identified a CPD officer as a source of supply for guns and silencers. An assistant U.S. Attorney believed the tape and other information provided by Casali created a sufficient predicate on which to request that Adamcik transfer Miedzianowski and Galligan off of the ATF task force.
Miedzianowski's assignment with the ATF was terminated on or about January 8, 1993. Soon after, Casali reported to ATF IA his knowledge of the corruption of ATF managers and what he believed was "malfeasance" by Vince and Adamcik for failing to have Miedzianowski removed from the ATF detail. In November 1993, Casali also reported his knowledge of Miedzianowksi's misconduct and the corruption of ATF managers to an agent from the Department of Treasury's Office of Inspector General ("OIG"). On February 28, 1997, the Merit Systems Protection Board concluded that Casali's whistleblowing disclosures were a contributing factor in the ATF's threatened removal action.
C. Miedzianowski's Alleged Retaliation
On January 26, 1993, Klipfel was interviewed by ATF IA agents concerning allegations made by Miedzianowski against her. According to the plaintiffs, Miedzianowski engaged in a wide ranging effort to discredit Klipfel. For instance, Miedzianowski told an ATF supervisor that it was Klipfel who stole the property from Pippin while executing the search warrant, and that she had stolen before while executing search warrants. On February 5, 1993, the plaintiffs learned that Miedzianowski repeatedly told other CPD gang crimes officers not to work with ATF, and especially not to work with Klipfel because she was a rat and may be wearing a wire. Miedzianowski admits that when he was discussing Klipfel with others, "lunatic" was one of the nicer words he used. Further, from September 1993 to June 1995, Miedzianowski solicited informants to give false statements against Klipfel.
On March 2, 1993, Klipfel was notified that she was the subject of an ATF IA investigation based on Miedzianowski and Galligan's allegations that Klipfel had made racial remarks and held a racist meeting over one and a half years earlier. Moreover, Miedzianowski obtained copies of the statements given to the CPD IAD even though generally, the accused in an CPD IAD investigation is not permitted to have any of the documents pertaining to the investigation. Miedzianowski also looked into Klipfel's financial records, conducted surveillance on her home, and spread rumors.
In a June 9, 1993 memorandum from Raymond Risley to Chicago Police Superintendent Rodriguez, Risley attached a document entitled "Criminal Conduct" which contained numerous accusations of criminal conduct by the plaintiffs. On August 2, 1994, the plaintiffs received Notices of Proposed Removal from the ATF, which were based on information primarily fabricated by the CPD and forwarded to the ATF. After issuing the Notices, for the next 25 months, the ATF stripped the plaintiffs of their supervisory positions and did not allow them to engage in law enforcement activity. ...