The opinion of the court was delivered by: Hon. Blanche M. Manning
The plaintiff, Kathy Foreman ("the plaintiff" or "Kathy"), as personal representative of the deceased Jessie Foreman, brought suit against Officer Johnson, pursuant to 42 U.S.C. § 1983 for alleged violations of the Fourth and Fourteenth Amendments. Defendant Johnson has filed a motion for summary judgment, which the court denies for the reasons stated below.
Most of the facts are undisputed except as noted herein. Kathy is the widow of the decedent and the personal representative of his estate. Kanissha Price and Kevin Price are the adopted minor children of Kathy and Jessie Foreman. Zeffernee Marie Wilson is the adult daughter of Kathy Foreman and the stepdaughter of Jessie Foreman. Jerone Cook was Wilson's boyfriend until approximately November 30, 2000. In December 2000, Wilson obtained an order of protection against Cook based on incidents that occurred in October and November 2000.
Johnson was at all relevant times an on-duty Chicago police officer acting within the scope of his employment and under color of state law.*fn1 On January 11, 2001, in the early evening hours, Wilson returned home from work to the residence where she lived with Kathy and Jessie Foreman (her mother and stepfather), as well as their two children, Kanissha and Kevin, who all were at home.*fn2 Shortly thereafter, Cook rang the doorbell of the Foreman residence and Wilson answered the door. Wilson told Cook he had to leave, but he pushed her aside and entered the home. Wilson called out to Kathy and Jessie, who were in their bedroom on the second floor of the residence. Kathy and Jessie then left the bedroom and went downstairs.
When they got near the bottom of the staircase, Cook pulled out a gun, said "this shit is over" and told everyone to go down to the basement. Kathy and Jessie retreated up the stairs to their bedroom and Cook followed with Wilson behind him. Kathy and Jessie attempted to close the bedroom door, but Cook got his hand between the door and the door frame. Cook told Jessie that he did not want to harm Jessie or the kids but he wanted to take Kathy and Wilson down to the basement and beat them 10,000 times apiece. Cook continued pushing on the bedroom with Kathy and Jessie pushing on the opposite side in an effort to keep him out. Cook pounded on the door and threatened to shoot through it. Wilson activated the home security system panic alarm, and went to Kanissha and Kevin's bedroom on the second floor. As the alarm sounded, Cook told Kathy and Jessie that if the police responded, someone had to die.
Johnson and his partner Kevin Jennings were on patrol in uniform in their marked car when they received a call from the police dispatcher of a panic alarm at the Foreman residence; accordingly, they went to the house. Kathy made a phone call to "911" from her bedroom and she was advised that the police were on their way. On their way to the Foreman residence, Johnson and Jennings received another call from the dispatcher updating the call to a "domestic" with a gun possibly involved.
Officers Gilbert, Denton, and Junirs were working together in civilian clothes in an unmarked police car when they heard the original dispatch and the update to Johnson and Jennings. After hearing the second dispatch, they also proceeded to the Foreman residence. Johnson and Jennings arrived first and the other three arrived soon thereafter. The officers went up the front porch and knocked on the door and rang the doorbell. When no one answered, one of the officers called the dispatcher to find out if the call was bona fide and another officer looked through a window and saw Wilson coming down the stairs to the front door. Wilson opened the door, told the officers that "he" had a gun and then ran to her neighbor's house. The plaintiff disputes this statement of fact, pointing out that Wilson testified at her deposition that she also told the officers that Cook was wearing black pants and a white shirt, was upstairs with her parents, and that children were in the other rooms. At that point, the officers heard gunshots from inside the house, entered the residence and went up to the second floor.
Cook was able to overpower Kathy and Jessie and gain entrance to their bedroom. Inside the bedroom, Cook aimed his gun at Kathy and fired twice, striking her in the left elbow and left thigh. Jessie had grabbed the gun when Cook was firing the second shot, but Cook was still able to fire. Johnson was the first police officer who went upstairs to the second floor. He positioned himself by straddling the doorway of the southwest bedroom, which was down the hall from Kathy and Jessie's southeast bedroom. Johnson was facing east down the hallway and was holding his service weapon in his left hand. Gilbert was the next officer up the stairs, and he positioned himself at the top of the stairs across the hallway from Johnson. Jennings, Denton and Junirs were behind Gilbert on the stairway leading to the second floor.
The officers heard a commotion coming from the southeast bedroom, and heard more gunshots. They announced "police" and shouted that whomever was in the bedroom should come out "with your hands up." After being shot twice by Cook, Kathy ran out of the southeast bedroom. Before she left, she saw Jessie and Cook on the bedroom floor struggling over the gun. Kathy ran from the bedroom down the hallway to the southwest bedroom, into the closet and collapsed.
From his position at the threshold of the southwest bedroom, Johnson saw Kathy run from the southeast bedroom and down the hallway to the southwest bedroom where he was standing. He saw that she was bleeding and that she went into the bedroom closet. He then focused his attention back on the southeast bedroom and heard more gunshots coming from that bedroom. Jessie, wearing a gray t-shirt and plaid boxers or pajama shorts, then fell out of the southeast bedroom door. As he fell, Cook fired his gun at Jessie from behind, creating muzzle flashes.
Johnson fired three shots, west to east along the south wall of the hallway, in the direction of the muzzle flashes. When he fired his weapon, Johnson was trying to stop Cook from firing at Jessie. At the time Johnson fired his weapon, he had not seen Cook in the hallway and from his position in the doorway of the southwest bedroom, Johnson could not have shot into the southeast bedroom where Cook was located. The distance between the southwest bedroom doorway where defendant Johnson fired his weapon and the doorway to the southeast bedroom is approximately ten feet.
After the shooting at the Foreman home, Johnson signed a Chicago Police Department Weapon Discharge Report, in which, as "reporting officer," he asserted that Cook had "exited bedroom firing weapon in direction of [Jessie] and [reporting officers]." The plaintiff asserts that the report was false because Johnson never observed Cook exit the southeast bedroom or fire his weapon in Johnson's direction. Johnson denies the report is false; rather, he contends that while the report is inaccurate in some respects, it plainly states that it should not be considered a verbatim statement but only a summary regarding requested information. The report also states that "fearing for his and victims [sic] life," he fired two shots in the direction of the offender. Johnson testified at this deposition that contrary to the statement in the report, he was not in fear of his own life when he fired his weapon.
Gilbert testified that as Jessie fell out of the bedroom door, Cook was shooting at Jessie and Gilbert moved back behind the wall because if one of the shots had "gotten past," Gilbert would have been in jeopardy of being shot. After Johnson fired his weapon, Gilbert attempted to pull Jessie toward him, but was unsuccessful because Cook was not visible to him and Gilbert was in Cook's direct line of fire. Gilbert eventually gained sight of Cook in the southeast bedroom. When Cook directed his gun at Gilbert, Gilbert fired his weapon at Cook.
Jessie sustained six gunshot wounds as a result of the incident and died. One of the bullets recovered from Jessie's body at the autopsy was later determined to have been fired from Johnson's weapon. Cook was convicted in the Circuit Court of Cook County of the first-degree murder of Jessie Foreman, the attempted first degree murder of Kathy Foreman, and the aggravated discharge of a weapon at the police.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The existence of a factual dispute is not sufficient to defeat a summary ...