The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
In a first amended complaint plaintiffs Lilia Arias and Malgorzata Sorokosz have sued Chicago Police Officer Michael Allegretti and the City of Chicago alleging unreasonable seizures in violation of the Fourth Amendment to the United States Constitution (Count I). In Counts II through IV plaintiffs allege state law claims of assault against Allegretti and respondeat superior and indemnification against the City. The City has moved for summary judgment on the three counts directed toward it (I, III and IV). For the reasons set forth below, that motion is denied.
The sordid facts of this case are largely undisputed, at least between plaintiffs and the City. Defendant Allegretti, a 17th District patrol officer stopped each plaintiff (on separate occasions) for committing routine traffic violations. Each plaintiff admits that she was guilty of the violation for which she was stopped. Each plaintiff alleges that once stopped, defendant Allegretti requested each to expose herself in exchange for not receiving a ticket. Allegretti denies these allegations, but for purposes of this motion, the City has admitted the facts as pled.
Arias was pulled over on November 30, 2004, at 7:00 a.m. for running a red light. Allegretti asked for her license and proof of insurance. Arias gave Allegretti only an expired insurance card. She had no license with her. Allegretti said "flash me." Arias refused. Allegretti then had Arias follow him to a spot where she could park her car. He had her get into the back of the squad car and took her to the police station. On the way to the station he asked Arias various personal questions such as her name, where she was coming from, whether she had a boyfriend, whether she would cheat on her boyfriend and whether she had someone on the side. Arias asked Allegretti to give her a break, to which he replied that he would have had she flashed him. At the station Allegretti wrote tickets for failure to have a license and running a red light, but not for lack of insurance. After writing the tickets, Allegretti told Arias that he might not show up to court and that if he did not, the charges against her might be dropped.. He then told her that if he did that she should go to the same location the following day to meet him, and that she should not wear underwear so she could "do a little dance for him." Arias refused. Allegretti then told her to "flash him." She refused. Allegretti then told her to open her jacket. Because she was wearing a sweater, Arias complied. Arias was then given the citations and released.
After being released, Arias went home and called the Chicago Police Department Office of Professional Standards to complain. The Internal Affairs Division assigned an investigator who found Arias credible, but nothing else was done. Allegretti was never notified of the charges, and no further investigation was conducted.
On May 24, 2005, Allegretti stopped plaintiff Sorokosz for making an illegal right turn on a red light. Following his pattern, Allegretti asked Sorokosz personal questions, including questions about her boyfriend. Sorokosz gave Allegretti her insurance card, but had no license because she was driving on a ticket. She did not have a copy of the ticket with her. Allegretti told her that her license could be suspended if he gave her another citation. He then asked what she would do to avoid a ticket and told her to show him her breasts. Afraid that she would lose her license which she needed for her employment, she complied with Allegretti's demands. Allegretti then told her to unzip her pants and touch herself. She again complied, unzipping her pants and touching her breasts. Allegretti then told Sorokosz to follow him. She started to do so, but then realized that Allegretti was not leading her to a police station, but down an alley. She stopped her car and called 911. As a result of that call, Allegretti was suspended. In August 2005, he was criminally charged with official misconduct.
In Count I, plaintiffs allege that they were subjected to unreasonable searches in violation of the Fourth Amendment. The City has moved for summary judgment on Count I as it pertains to it, arguing that the undisputed facts demonstrate that Allegretti's alleged actions, even if true, were not the result of inadequate training, discipline or supervision of police officers, and therefore plaintiffs cannot satisfy their burden under Monell v. New York City Department of Social Services, 436 U.S. 658, 694 (1978).
Because municipal liability under § 1983 cannot be founded on the doctrine of respondeat superior, Board of County Commissions of Bryan County Oklahoma v. Brown, 520 U.S. 397 (1997), plaintiffs must establish that they suffered a constitutional deprivation and that the deprivation occurred as a result of a municipal policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). Municipalities are liable under § 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those who's edicts or acts may fairly be said to represent official policy, inflicts the injury. Monell, 436 U.S. at 694. A municipal policy can be shown in three ways: "(1) an express policy that, when enforced, cause[d] a constitutional deprivation; (2) a wide-spread practice that, although not authorized by written law or express municipal policy, [was] so permanent well-settled as to constitute a custom or usage with the force of law; or (3) the act of a person with final policy-making authority." McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995).
When liability is predicated on a wide-spread practice lacking formal approval, a plaintiff must demonstrate that the policy-making authority both knew of and acquiesced in a pattern of unconstitutional conduct. McNabola v. Chicago Transit Authority, 10 F.3d 501, 511 (7th Cir. 1993). To establish Monell liability based on evidence of inadequate training or supervision, as plaintiffs attempt in the instant case, they must present proof of "deliberate indifference" on the part of the City. Sornberger v. City of Knoxville, Illinois, 434 F.3d 1006, 1029-30 (7th Cir. 2006). Such proof can be evidence of either (1) failure to provide adequate training in light of foreseeable consequences, or (2) failure to act in response to repeated complaints of constitutional violations by its officers. Id.
In the instant case, the City raises two challenges to plaintiffs' Monell claim. First, the City argues that neither plaintiff has suffered a constitutional violation. According to the City, not every official abuse of power, even if unreasonable, unjustified or outrageous rises to the level of a federal constitutional deprivation. McCoy v. Harrison, 341 F.3d 600, 605 (7th Cir. 2000). "Some such conduct may simply violate state tort law or indeed may be perfectly legal though unseemly and reprehensible." Kernats v. O'Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994).
The City appears to be arguing that neither plaintiff was "seized" for purposes of the Fourth Amendment. Citing California v. Hodari D., 499 U.S. 621, 624-26 (1991), the City argues that a seizure without submission is not a seizure governed by the Fourth Amendment. Then, citing McCoy, it argues that the Fourth Amendment is not triggered unless (1) physical force was used along with a showing of authority, and (2) the person submitted to that showing of authority. McCoy, 341 F.3d at 605.
The City reads McCoy incorrectly. A seizure does not depend on the use or threatened use of physical force. All that is required is "an intentional acquisition of physical control," Brower v. County of Inyo, 489 U.S. 593, 596 (1989), with the state actor "restraining the freedom of a person to walk away, thereby seizing that person." McCoy, 341 F.3d at 605 (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)). It is beyond dispute that the "temporary detention of individuals during the stop of an automobile by police, even if only for a brief period and limited purpose, constitutes a ...