The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
On the night of January 3, 2006, Roberto Gonzalez began speaking incoherently and acting strangely. He brandished a large kitchen knife and then barricaded himself alone inside a small pantry in his family's home in the City of Waukegan. A family member called 9-1-1, and Waukegan police officers promptly arrived on the scene. They were unable to talk Gonzalez out of the pantry, however and, after a standoff, police officers fired several rounds of a pepper spray into the barricaded pantry and forcibly kicked down the door. Once inside the pantry, officers pinned Gonzalez against a wall with a protective police shield and shocked him multiple times with a taser gun. Soon after officers wrestled Gonzalez to the ground and placed him in handcuffs, Gonzalez lost consciousness. Several minutes later, despite officers' attempts at resuscitation, Gonzalez was dead. The medical examiner attributed Gonzalez's death to "excited delirium due to cocaine intoxication," but observed that "[s]tress due to restraint is considered a significant contributing factor to the death."
Martha Henriquez, the administrator of her brother Roberto Gonzalez's estate, brings this action against the officers involved, alleging use of excessive force in violation of the Fourth Amendment and tortious assault and battery under state law. Henriquez also sued the City of Waukegan under a respondeat superior theory on the estate's state law claims. The officers contend that they acted reasonably and are entitled to qualified immunity from liability on the federal claims. Both the City and the individual officers move for summary judgment. For the reasons explained below, the City's motion is denied and the individual Defendants' motion is granted in part and denied in part.
As this case is before the court on Defendants' motions for summary judgment, the court views the facts and draws all reasonable inferences that flow from them in the light most favorable to Plaintiff, as the nonmoving party. Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003).
On the night of January 3, 2006, Roberto Gonzalez was inside his home in the city of Waukegan, Illinois, when he began acting out. Roberto's brother, Jose Gonzalez, testified that Roberto had been drinking alcohol and was "getting out of hand." (Gonzalez Dep. at 26:19-20.) Roberto-who was 34 years old and weighed close to 240 pounds-was mumbling incoherently, slurring his speech, and brandishing a large kitchen knife. (Id. at 27:9-12; 32:1-3.) Even so, Jose said, Roberto wasn't physically aggressive toward any of the other people gathered in the home. (Id. at 27:15-20.) Jose tried to calm his brother down, and ultimately succeeded in knocking the knife from Roberto's hand as Roberto stood in the doorway between the home's kitchen and a small pantry. (Id. at 29:5-24.) Roberto then withdrew into the pantry, closed the door, and barricaded himself inside alone. (Id. at 29:13-23; 30:21-24.) Jose attempted to force the pantry door, but was unable to get it open. (Id. at 22:7-23.) Yolanda Centeno, Roberto's sister, was in the kitchen when Roberto shut himself in the pantry. She heard, but she did not see, Jose knock the knife from Roberto's hand. (Centeno Dep. at 23:13-22.) The record does not indicate where the knife ultimately came to rest, and it is not clear whether it landed on the floor inside the pantry door, where Roberto could have retrieved it, or fell harmlessly out of Roberto's reach onto the kitchen floor.
After Roberto shut himself inside the pantry, Centeno heard Roberto making noises and shouting things like "leave me alone, leave my family alone." (Id. at 20:2-8.) Centeno testified that it was difficult to make out what Roberto was saying because some of his statements were nonsensical. (Id.) Centeno believed Roberto was hallucinating, so she called 9-1-1 and requested an ambulance. (Id. at 24:8-14.) The record does not indicate precisely when Centeno placed the emergency call, but Centeno testified that it was some time after approximately 11:00 p.m. (Id. at at 16:2-19:15.) The emergency operator told Centeno that police officers had been dispatched to the house. (Id. at 25:9-18.) When Jose, who was standing near the phone, heard that police were en route he told Centeno, "I don't want no police officer. I need an ambulance." (Id. at 25:9-24.)*fn1
It is unclear whether Centeno relayed this request to the emergency operator, but Waukegan police officers did, in fact, arrive at the residence before Centeno hung up with the emergency operator. (Id.) The record does not indicate when an ambulance or medical personnel arrived at the Gonzalez residence, but paramedics were present during at least some of the ensuing events.
Sergeant Charlie Burleson of the Waukegan Police Department was the shift supervisor at the time that the emergency call was received. (Burleson Dep. at 9:5-13.) When Ms. Burleson, who was the second officer on the scene, arrived, Roberto was still barricaded in the pantry. (Id. at 10:4-7.) According to Burleson, she spoke first with Jose, who told her that he had struck Roberto in the head during a struggle before Roberto went into the pantry. Burleson testified that Jose expressed concern because Roberto's head was bleeding. (Id. at 10:10-14.) According to Burleson, Jose also said that Roberto "was going crazy" and that Roberto had been "threatening [his family] with a knife." (Id.)
Jose's account of his interactions with police does not include the conversation that Burleson describes. (Pl.'s 56.1 Resp. ¶ 26.)*fn2 Jose testified that one of the first police officers to enter the house had his gun drawn. (Gonzalez Dep. at 38:1-3.) Jose told the officer to put the gun away and said, "my brother's not armed." (Id. at 38:13-17.) A female police officer (Plaintiff contends this was likely Burleson) reassured Jose: "Don't worry. We're not going to harm your brother. We're going to get him under control. We're going to take him to [a nearby hospital]." (Id. at 38:18-39:22.) Jose was then escorted from the house by police. (Id.)
Sergeant Burleson testified that, based on Jose's report that Roberto was apparently unstable and armed with a knife, she ordered the officers present to "secure the scene" by removing the rest of the family from the house. (Burleson Dep. at 11:16-23.) Burleson, who is also a specially-trained hostage negotiator, then attempted to establish a dialogue with Roberto by asking him questions through the pantry door. (Id. at 14:15-24.) Roberto made several comments, not all of which were responsive to Burleson's questions. (Id. at 13:4-23.) Burleson asked if Roberto was hurt, to which Roberto responded, "No, no, no." (Id. at 13:14-15.) When Burleson told Roberto that the police were there to assist him, Roberto made reference to an apparent hallucination; he told her, "the bad people are here, the bad people, the bad people, the demons." (Id. at 13:16-18.) Burleson asked Roberto whether he had a knife, and Roberto responded "no," but Roberto then said the word "stick" for no apparent reason. (Id. at 13:19-20.) Burleson asked Roberto if he was bleeding, and Roberto again said "no." (Id. at 13:20-21.) Burleson urged Roberto to come out of the pantry and talk face-to-face, but Roberto refused and, according to Burleson, began thrashing frantically and making noises "as if he was speaking in tongues, just a lot of, you know, kind of gibberish that you couldn't understand." (Id. at 13:21-14:2.) This continued for some time--Burleson was not sure exactly how long--mixed with intervals of silence. (Id. at 14:3-14.) At points, Burleson could also hear "what appeared to be whimpering." (Id. at 14:10-11.) Burleson continued attempting to communicate with Roberto, while the "Rapid Response Team"-the Waukegan Police Department's version of a SWAT Team-took up positions in the kitchen and outside of the house. (Id. at 19:22-24.) The record does not indicate exactly how long the standoff lasted, but the accounts of the various officers involved suggest that the entire incident lasted no longer than one or two hours. By 1:00 a.m. that night, members of the Lake County Major Crime Task Force had been dispatched to the scene to begin an investigation into Roberto's death. (Investigative Report, Ex. B to Pl.'s 56.1 Stat.)
Police Commander Robert Kerkorian was the shift commander on duty at the time Centeno's emergency call came in. (Kerkorian Dep. at 7:22-24.) He first learned of the situation some time after 11:00 p.m. from Police Commander Wayne Walles, who met Kerkorian at the police station and informed him that a man armed with a large kitchen knife had barricaded himself inside a pantry at a private residence.*fn3 (Id. at 8:2-4; 10:19-22.) Kerkorian asked Walles to keep him informed, and Walles reported to the scene where he observed Burleson, who was just then beginning her attempt to communicate with Roberto. (Walles Dep. 10:12-14:18.) After a few minutes, Walles phoned Kerkorian and again described the situation. Walles also told Kerkorian that the department's deputy chief, Artis Yancey, had authorized the deployment of the Rapid Response Team to address the situation. (Kerkorian Dep. at 9:1-15.)*fn4
Kerkorian, who is a senior member of the Rapid Response Team, immediately notified the other team members at the police station and ordered them to gather their gear and report to Gonzalez's address. (Id. at 12 2:8.) Kerkorian then drove to the residence, where he was met by Walles, who reported that Burleson was still attempting a dialogue with Roberto. Walles and Kerkorian were then joined by Deputy Chief Yancey, and the men discussed the "emergency plan," a contingency plan to be used if it suddenly became necessary for the Rapid Response Team to enter the pantry for the safety of Roberto or others. (Walles Dep. at 27:7-19.) The plan called for officers to break a small first-floor exterior window that gave access to the pantry. (Id. at 27:21-22.) Officers would then fire several "pepperballs" --pellets containing a debilitating chemical powder that is similar to pepper spray--through the small window into the pantry. (Id. at 27:22-24.) A team inside the house would then breach the pantry door and restrain Roberto. (Id. at 27:24-28:1; Kerkorian Dep. at 15:14-16.)
Kerkorian was in command of the operation, and he devised the emergency plan. (Walles Dep. at 27:10-11; Kerkorian Dep. at 14:18-15:1-22.) He also instructed all of the members of the Rapid Response Team as to their role in the plan. (Id. at 14:9-17.) After discussing the plan with Walles, Kerkorian entered the house and spoke with Sergeant Burleson. (Id. at 16:7-10.) Kerkorian testified that Burleson confirmed that "she did talk to the family or officers had talked to the family" and that family members had advised police that Roberto had no history of mental illness or drug use. (Id. at 16:16-19.) According to Kerkorian, Burleson also told him "that [Roberto] had a large kitchen knife [and] that he was acting crazy." (Id. at 16:23-24.) Kerkorian took up a post outside of the house near the driveway, where he could give further orders via radio to officers positioned at the external window and officers positioned inside the kitchen.
Detective Alejos Villalobos, a member of the Rapid Response Team, was posted to a ladder outside of the small first-floor window to the pantry, armed with a pepperball gun. (Villalobos Dep. 14:4-15:13, 9:2-17.)*fn5 According to Villalobos, two other Rapid Response Team members, Officers Michael Newman and Mark Sturtevant, were posted on the ground near the ladder in order to provide cover and support. (Id. at 13:16-14:6.)*fn6 Villalobos testified that, from his position on the ladder, he could partially see through the window into the pantry where Roberto was sequestered. (Id. at 15:10-14.) Villalobos did not have a clear view of Roberto, however, because the window was covered on the inside by a semi-translucent piece of plastic. (Id. at 15:15.) Officer Newman, who also claimed to have been up on the ladder, described the plastic as "some sort of wax paper film." (Newman Dep. at 12:17-18.) "We could see shapes and movement [through the plastic]," Newman said, "but we couldn't make anything out." (Id. at 12:18-19.) Like Newman, Villalobos admitted that he could only make out indistinct silhouettes inside the pantry. (Villalobos Dep. at 15:24.)
As he waited beside the window, Villalobos testified, he saw Roberto briefly lean his head against the plastic covering. The contact with Roberto's head left a red smudge on the plastic that Villalobos, who claims he was right outside the window, immediately recognized as blood.*fn7 (Id at 34:20-35:5.) Villalobos then saw Roberto make several jerky thrusting motions with his hands and arms toward his neck. (Id. at 35:20-21.) Villalobos could not tell what exactly was in Roberto's hands, but he thought he saw an object that might have been a knife and he "assumed" that Roberto was stabbing himself. (Id. at 36:6-24.) Villalobos admitted, however, that the thrusting was unaccompanied by any noises, such as screaming, or any further indication of blood spatter. (Id. at 36:22-23.) Officer Newman also testified that he saw the thrusting motion, though in Newman's version, he, rather than Villalobos, was up on the ladder. (Newman Dep. at 17:5-23; 19:17-19.) Officer Sturtevant claimed to have seen the knife distinctly, as well, though he testified that he was kneeling on the ground beside the ladder, presumably well below the window. "The knife looked like a big butcher knife that you would cut big steaks with," Sturtevant said, "I guess a chef's knife would be the best way to describe it." (Sturtevant Dep. at 14:11-14.) Sturtevant is the only officer who claims that he ever actually saw a knife in Roberto's possession at any time during the incident.*fn8
Either Sturtevant or Newman then yelled to Commander Kerkorian, who was about fifteen feet away in the driveway, that it appeared that Roberto was stabbing himself. (Sturtevant Dep. at 15:4-17; Newman Dep. at 19:13-16; Kerkorian Dep. at 22:5-11.) Kerkorian immediately gave the order to prepare to enter the pantry. (Kerkorian Dep. at 20:10-13.) Approximately one minute later, he ordered the implementation of the emergency plan. (Id.) Newman--who testified that he was still on the ladder at this point--smashed a hole in the top part of the window, and Villalobos fired seven pepperball rounds through the broken window into the interior ceiling of the pantry. (Newman Dep. at 21:10-23; Villalobos Dep. at 37:8-21.)
Officers Steven Hollister, Anthony Joseph, Devin Roush, Edward Heidler, and Commander Walles-all specially-trained members of the Rapid Response Team-were inside the house near the pantry door when Kerkorian gave the order to enter the pantry and subdue Roberto. Officer Heidler first tried to force the door open. He succeeded in pushing the door open a small crack, but the door was strongly barricaded by an object behind it. Heidler was soon overcome by the debilitating fumes of the pepperball rounds, which caused a burning sensation in his eyes, nose, and throat, and made it difficult for him to breathe. (Heidler Dep. at. 12:12-21; 16:11-23.) Observing that Heidler was overcome, Walles ordered Heidler to leave the house immediately to get fresh air. (Id. at 17:3-6.) Officers then took turns using a battering ram to strike the door, but the door remained well barricaded and opened only slightly. (Rouse Dep. at 17:1-5.) Officer Rouse moved to a position where he could see Roberto inside the pantry through the narrow opening at the door. (Id. at 17:10.) Rouse saw that Roberto was holding a piece of cloth up to his mouth, flailing his arms, and pacing back and forth in the pantry. (Id. at 17:12-14; 18:21-23.) Rouse ...