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Kruse v. County of Cook

January 11, 2007

KATHY KRUSE AS INDEPENDENT ADMINISTRATOR, OF THE ESTATE OF MICHAEL KRUSE, DECEASED; PORSCHA CAYENNE KRUSE, A MINOR BY HER GUARDIAN AND NEXT FRIEND, ROSALIE SKEEL; MICHAEL JOSEPH KRUSE, A MINOR, BY HIS GUARDIAN AND NEXT FRIEND, ROSALIE SKEEL, PLAINTIFFS,
v.
COUNTY OF COOK, A MUNICIPAL CORPORATION TOM DART, IN HIS OFFICIAL CAPACITY AS SHERIFF OF COOK COUNTY, ILLINOIS, DEPUTY COOK COUNTY SHERIFF VERNELL TIMS, EMPLOYEE OF TOM DART SHERIFF OF COOK COUNTY, ILLINOIS, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, AND JACQUELINE JACK, ROSETTA FRASER, BESSIE BROWN, CLINICAL NURSES EMPLOYED AT CERMAK HOSPITAL, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY, CITY OF PALOS HILLS, A MUNICIPAL CORPORATION, AND DETECTIVE MCMAHON, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF PALOS HILLS, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

On May 26, 2004, 43-year-old Michael Kruse died in the Cook County Jail after being arrested by Palos Hills Police. Kruse's survivors, Plaintiffs Kathy Kruse, Porsha Cayenne Kruse, and Michael Joseph Kruse, filed this action against Palos Hills and Cook County officials, stating claims under 42 U.S.C. § 1983 and state tort law. Named Defendants are the County of Cook, Sheriff Sheahan, several deputy sheriffs and nurses employed by the County, the Village of Palos Hills (the "Village"), and Palos Hills Detective John McMahon. As against the Village and Detective McMahon (the "Palos Hills Defendants"), Plaintiffs allege that Kruse was arrested and detained without probable cause in violation of his rights under the Fourth and Fourteenth Amendments. The Palos Hills Defendants now move for summary judgment, arguing that there was probable cause to arrest Kruse and that Plaintiffs have produced no evidence of an unconstitutional policy. For the reasons set forth below, the Palos Hills Defendants' motion is granted.

Background*fn1

A. Arrest of Michael Kruse

On August 5, 2002, a man armed with a metal shank robbed Hillcrest Video in Palos Hills. (Def.'s 56.1 ¶¶ 1, 2; Pl.'s Ex. 3, at 000016.) Employee Scott Merlin ("Merlin") was the only witness to the crime. (Def.'s 56.1 ¶ 4.) The same offender again robbed the store on August 8, 2002, and again, Merlin was the victim and the only witness. (Id. ¶¶ 2, 6.) Palos Hills Police Detective Jeffrey Cucio investigated the first robbery, assisted by Defendant Detective John McMahon. (Id. ¶ 3.) McMahon took over the investigation after the second robbery. (McMahon Dep., at 42.)

Merlin gave descriptions of the robber to the Palos Hills police after each robbery. Although Merlin believed that the man who committed the second robbery was the same man who had robbed the store three days earlier,*fn2 Merlin's descriptions varied somewhat. (Def.'s 56.1 ¶¶ 4, 7; Pl.'s 56.1 Addnl. ¶ 9.) After the first robbery, Merlin described the man as slim, unshaven, white, around 5'9" tall, with a brown shaggy mustache, a crooked nose, brown hair covering his ears, and a small straight scar on his face; the robber wore a White Sox baseball cap and a black White Sox jersey. (Def.'s 56.1 ¶ 8; Merlin Dep., at 11-12; McMahon Dep., at 24, 38-39.) After the second robbery, Merlin described the robber as between 5'11" and 6' tall, and weighing 180 pounds. (Merlin Dep., at 12-13; McMahon Dep., at 31.) Merlin also gave conflicting indications of whether the scar was on the robber's left or right cheek. (Def.'s 56.1 ¶ 8.) Bulletins issued to law enforcement agencies based on Merlin's descriptions reflected these inconsistencies. After the August 5 robbery, one bulletin described the suspect as 30 years old, 5'9", 140 to 150 pounds, with a scar on the left cheek; a second placed the scar on the right cheek and listed the age as 37. (McMahon Dep., at 38-40.) After the August 8 robbery, an Illinois State Police sketch artist interviewed Merlin and composed a sketch based on the description he provided. (Def.'s 56.1 ¶ 10.) The narrative accompanying the sketch described a white male, 5'11", 140 to 150 pounds, 35 to 40 years old; and in the sketch, the scar is on the right cheek. (Wanted Bulletin, Pl.'s Ex. 3, at 000013.)

In investigating the robberies, Detectives Cucio and McMahon obtained no evidence other than Merlin's descriptions. (McMahon Dep., at 20, 28.) Surveillance video retrieved from a nearby Wal-Mart added nothing to the investigation, (Def.'s 56.1 ¶ 5), and Hillcrest Video's surveillance equipment produced no identifiable images of the robber. (McMahon Dep., at 18, 21; Pl.'s Ex. 2.)

Shortly after the second armed robbery, Chicago Ridge Police Detective Cokete contacted Detective McMahon after overhearing one of the bulletins issued by Palos Hills police.*fn3 (Def.'s 56.1 ¶ 11.) Cokete told McMahon that a homeless man named Michael Kruse fit the description of the offender. (Id. ¶ 12; McMahon Dep., at 43-44.) Cokete was aware of Kruse because Chicago Ridge police had an outstanding warrant for Kruse's arrest on a disorderly conduct charge.*fn4 (Def.'s 56.1 ¶ 13.) Cokete provided McMahon with a mug shot of Kruse that had been taken by Chicago Ridge police on March 5, 2002, after an unrelated arrest on that date. (Id. ¶ 14; McMahon Dep., at 110-11.) McMahon obtained a listed address for Kruse in Hickory Hills, but was informed by Hickory Hills police that Kruse no longer lived there. (Def.'s 56.1 ¶ 15.) McMahon also spoke to Kruse's sister, who confirmed that Kruse was homeless. (Id. ¶ 16.)

Using the mug shot of Kruse from Chicago Ridge and photographs from Palos Hills police files of suspects who looked like Kruse, McMahon created an eight-photo array. (Id. ¶ 17; McMahon Dep., at 48-49.) McMahon showed Merlin the photo array and asked him if he recognized the robber. (Def.'s 56.1 ¶ 19.) McMahon told Merlin to take his time, and did not tell him who to pick. (Id.) After looking at the array for less than a minute, Merlin picked the photograph of Kruse. (Id.) McMahon considered Merlin credible. (Id. ¶ 20.) McMahon maintains that Merlin told him that Merlin was "sure" that the man in the photo he picked out was the man who had robbed him. (McMahon Dep., at 52, 54.)

Plaintiffs dispute the certainty of Merlin's identification. Defendants, in their Local Rule 56.1 Statement of Undisputed Facts, state that Merlin "could not be 100 percent certain." (Def.'s 56.1 ¶ 23.) Defendants cite to a portion of Merlin's deposition testimony in which he testified that he never told McMahon that he was "a hundred percent certain" because he could not see a scar or a White Sox cap and jersey in Kruse's photograph. (Merlin Dep., at 34.) In Plaintiffs' view, this establishes that Merlin "could not make a positive identification." (Memorandum in Support of Plaintiffs' Response to the Village of Palos Hills and John McMahon's Motion for Summary Judgment (hereinafter, "Pl.'s Resp."), at 2.) Plaintiffs rely on other portions of Merlin's deposition, where he testified, "I made very clear never to say that that's the guy due to me not being sure that was the guy. . . . I couldn't be sure that's the guy[,]" (Merlin Dep., at 41); and that he "never said that I was sure it was him, because I wasn't sure it was him." (Id. at 19.) Merlin also testified, however, that when he picked Kruse, he told McMahon "he looks like the guy who did it. . . . that looks like him." (Id. at 24.) He further testified that he told McMahon that other than the absence of the scar and the White Sox clothes, the picture he identified looked "very very much like the person" who robbed him, and that if the man in the photo had a scar, the photo would be "very very accurate." (Id. at 26.) Merlin admits that he told McMahon the photo "looks a lot like him" and that "[w]ith the scar, it would look even more like him, possibly be him." (Id. at 19.)

After Merlin's identification of Kruse, McMahon called Assistant State's Attorney Pat Sheahan, told him the facts of the case, and explained that Merlin had picked Kruse out of a photo lineup. (Def.'s 56.1 ¶ 24.) Sheahan prepared a warrant for Kruse's arrest, which stated the charge of armed robbery and provided a physical description of Kruse based on Merlin's descriptions. (Id.; McMahon Dep., at 66-67; Arrest Warrant, Pl.'s Ex. 3, at 000050.) On August 15, 2002, Judge James P. O'Malley signed the warrant after McMahon swore to the truth of the facts in support of issuance of the warrant, and told Judge O'Malley that Merlin had made a positive identification of Kruse from a photo array. (Def.'s 56.1 ¶ 24; Answer to Third Am. Compl. ¶ 20; McMahon Dep., at 65-66; Arrest Warrant, Pl.'s Ex. 3, at 000050.)

On May 15, 2004-nearly two years later-the Bridgeview Police Department arrested Kruse. (Def.'s 56.1 ¶ 25.) Although the record does not reveal the precise circumstances of that arrest, it is Detective McMahon's understanding that police had found Kruse intoxicated in a Bridgeview park. (McMahon Dep., at 111.) When they ran a check for outstanding warrants, Bridgeview police found both the warrant for the Palos Hills armed robbery, and the warrant for disorderly conduct from Chicago Ridge. (Def.'s 56.1 ¶¶ 13, 26; McMahon Dep., at 112.) Bridgeview police contacted Palos Hills police, who picked Kruse up from Bridgeview at 6:40 p.m. on May 15, 2004-a Saturday-and brought him to the Palos Hills lockup where he was fingerprinted and photographed.*fn5 (Def.'s 56.1 ¶ 28; McMahon Dep., at 76-77.) When he was arrested, Kruse did not have a scar on his face. (Def.'s 56.1 ¶ 23.) He was 43 years old. (State of Illinois Driver's License, Michael D. Kruse, Pl.'s Ex. 6.) His booking mug shot on May 15, 2004 lists him as 6 feet tall and 170 lbs. (DocuBOOK Mugshots, Pl.'s Ex. 1.)

Detective McMahon was notified of Kruse's arrest late Saturday night, and interviewed Kruse at 8:40 a.m. the following morning. (Def.'s 56.1 ¶ 29; McMahon Dep., at 78-80.) Kruse told McMahon that at the time of the Hillcrest Video robberies, he had been working at Perdue Chicken in Tennessee. (Def.'s 56.1 ¶ 29.) Defendants assert that after Kruse offered his alibi on Sunday morning, May 16, 2004, McMahon "immediately followed up." (Id.) In fact, however, although McMahon testified that he "[i]mmediately . . . made efforts to get ahold of the bosses, administration, whoever at Perdue Chicken and find out if we could get this story verified," he acknowledged that he did not actually contact anyone at Perdue Chicken in Tennessee until Tuesday, May 18, 2004. (Id. ¶ 31; McMahon Dep., at 93.) In the meantime, at a bond hearing on Monday, May 17, 2004, Assistant State's Attorney Lisa Smith learned that Kruse had told his public defender that he had been out of state at the time of the robberies. (McMahon Dep., at 89-91.) On May 18, Smith contacted Palos Hills police with this information. (Id. at 91-92.) McMahon called Assistant State's Attorney Battaglia, who advised McMahon to check Kruse's story. (Id. at 93.) Only then did McMahon began placing calls to the Perdue Chicken Human Resources Department. (Id.)

By this time, Kruse had been transferred to Cook County Jail. (Id. at 86.) Although the parties do not specify exactly when Cook County assumed custody, it appears to be after Kruse's bond hearing on May 17, 2004.*fn6 (Id. at 89.) According to McMahon, Palos Hills has an unwritten policy of encouraging expeditious transfers of prisoners to Cook County. (Id. at 87.) McMahon explained that Palos Hills police, for "safety [and] liability" reasons, "don't like to hold onto prisoners unless we have to due to the fact of suicides, whatever." (Id.)

On May 20, 2004, Steve Cannon from Perdue Chicken faxed documents to McMahon, including time cards with Michael Kruse's name and Social Security number, that appeared to confirm Kruse's alibi that he was working at Perdue Chicken at the time of the robberies. (Def.'s 56.1 ¶ 31; McMahon Dep., at 98-99.) McMahon, however, did not consider the alibi foolproof because an employee ID photograph that was included in the fax "came out solid black." (Def.'s 56.1 ¶ 31; McMahon Dep., at 98-100.) Because he was not "100 percent sure" of Kruse's alibi,*fn7 and because he believed that Kruse's public defender was "right behind me in my investigation," McMahon did not inform the State's Attorney or the public defender's office of what he had received from Cannon. (McMahon Dep., at 102-03.) Instead, McMahon asked Cannon to mail the photograph and time sheets, which McMahon received via Federal Express on June 3, 2004.*fn8 (Id. at 100.) Unbeknownst to McMahon, Kruse had died from a ruptured aorta in the Cook County Jail on May 26, 2004, (Def.'s 56.1 ¶ 32; Answer to Third Am. Compl. ¶ 26), where Plaintiffs assert that Cook County Sheriff's deputies and medical staff had ignored Kruse's complaints of pain and pleas for assistance. (Fifth Am. Compl. ¶¶ 32-38.) Upon learning of Kruse's death, McMahon closed his investigation of Kruse; he now believes that Kruse was not the man who committed the August 2002 armed robberies. (McMahon Dep., at 105.)

B. Palos Hills Police Official Policies

The Detective Division of the Palos Hills Police Department is comprised of a Detective Sergeant and two Detectives. (Def.'s 56.1 ¶ 33.) All three members of the Detective Division have received state-mandated training on making proper arrests and conducting on-scene police investigations. (Id. ¶ 35.) In addition, the Village requires its Detectives to undergo supplemental training, and all three members of the Detective Division, including Defendant McMahon, have received training on topics specifically relating to conducting proper investigations and making proper arrests. (Id. ¶¶ 36-38.) All Detectives, "as a matter of strictly enforced policy and custom," must follow up on all leads and alibis during a felony investigation. (Id. ¶ 39.) All members of the Palos Hills Police Department must analyze all the evidence presented to them before attempting to obtain an arrest warrant, and, before obtaining an arrest warrant on a felony, must confer with an Assistant State's Attorney as to whether the evidence justifies obtaining a warrant. (Id. ¶ 40-41.) When provided with the evidence, the Assistant State's Attorney conducts a felony review to determine whether to obtain an arrest warrant. (Id. ¶ 42.)

Members of the Palos Hills Police Department may not seek to obtain an arrest warrant based on a tentative identification. (Id. ¶ 43.) Defendants assert that Detective McMahon has "never gone to a judge" or "attempted to obtain an arrest warrant on anything less than 100 percent identification."*fn9 (Id. ¶ 44.)

The Village also enforces a policy by which all information uncovered during a felony investigation must be forwarded to the State's Attorney's Office. (Id. ¶ 45.) It is the custom and practice for Palos Hills police to prepare reports of all police investigations and maintain all documentary evidence. (Id. ¶¶ 45-46.)

C. This Lawsuit

Plaintiff Kathy Kruse, as administrator of Michael Kruse's estate, initiated this lawsuit on September 21, 2004. Kathy Kruse, along with Plaintiffs Porsha Cayenne Kruse and Michael Joseph Kruse, who Plaintiffs allege are minors and surviving children of Michael Kruse, (Fifth Am. Compl. ¶¶ 5-6), brought claims under 42 U.S.C. § 1983; a state law claim for negligence/wrongful death; and a survival action. Plaintiffs initially named as defendants Cook County Sheriff Michael Sheahan, Cook County Jail Director Callie L. Baird, and several known and unknown Deputy Cook County Sheriffs. On April 21, 2005, this court granted Defendants' motion to dismiss § 1983 claims against Sheahan and Baird. Kruse v. Sheahan, No. 04 C 6130, 2005 WL 1126549, at *2 (N.D. Ill Apr. 21, 2005). Plaintiffs' Second and Third Amended Complaints, filed on May 13, 2005, and July 5, 2005, added as defendants the County of Cook and a nurse employed by the County, and further added § 1983 claims against the Village,*fn10 Palos Hills Chief of Police Paul Madigan, Detective McMahon, and "Richard Roe 3" (whom Defendants later identified as Detective Cucio). (Third Am. Compl. ΒΆΒΆ 51-63.) The Village, McMahon, and Cucio answered Plaintiffs' Third Amended Complaint on July 22, 2005. On September 9, 2005, this court granted Police Chief Madigan's motion to dismiss the claims against him and denied the Cook County Defendants' motion to dismiss. Order ...


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