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Lavon Billups v. Chicago Police Officer T. Kinsella

December 9, 2010

LAVON BILLUPS, PLAINTIFF,
v.
CHICAGO POLICE OFFICER T. KINSELLA, STAR , AND THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Hon. Joan H. Lefkow

# 17145

OPINION AND ORDER

Lavon Billups filed a second amended complaint against Chicago police officer T. Kinsella ("Officer Kinsella") and the City of Chicago ("the City") under 42 U.S.C. § 1983 for unlawful search and seizure, false arrest and unlawful detention, and excessive force under the Fourth and Fourteenth Amendments to the United States Constitution.*fn1 Billups has also asserted a claim of indemnification against the City. Before the court is defendants' motion for summary judgment. For the following reasons, the motion [#80] is granted.

LEGAL STANDARD

Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56(c) & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In response, the nonmoving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at 598--99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

BACKGROUND*fn2

Billups lives on the first floor of a multi-family dwelling owned by her mother, Ann Billups, on West Gladys Ave. in Chicago. On June 14, 2006, Officer Kinsella received information that Billups's boyfriend, Maurice Boyce, had displayed a .9 mm handgun at the apartment on various occasions. Further investigation revealed that Boyce was a convicted felon. Officer Kinsella, a white male with dark brown hair, proceeded to obtain a search warrant for the apartment and Boyce that targeted the .9 mm handgun, ammunition, and documents concerning Boyce's residency from Cook County Judge Kunkle on June 14, 2006 at 8:25 a.m.

On June 14 to 15, 2006, Officer Kinsella was on the midnight shift, lasting from 10 p.m. on June 14 to 6 a.m. on June 15. At some point during this shift, he met with eleven other officers to brief them on the warrant. Between 2:30 a.m. and 3:00 a.m. on June 15, 2006, Officer Kinsella, accompanied by these officers, executed the search warrant at Billups's apartment. They first entered a locked door to the building. Officer Kinsella then knocked on Billups's apartment door. Billups, who was watching television in a back bedroom, heard banging at her door and went to see who was there. She was told that it was the police, although at first she thought that it was a joke. Billups attempted to open the door but could not because the security lock was jammed. She returned to the rear bedroom to wake Boyce, who was sleeping at the time. When Boyce reached the door, he was also told that the police were requesting entry into the apartment. Like Billups, he was unable to unlatch the security lock. The officers then breached the door, entering with their guns drawn. Officer Kinsella did not initiate or execute the breach. Billups and Boyce were ordered to the floor. A white female officer slammed Billups to the floor and handcuffed her. Boyce was pushed against a wall, handcuffed, and seated on a couch in the living room. DeAndre Boyd, Billups's son, was taken from his bedroom and seated on a chair across from Boyce. After spending between forty-five minutes and an hour on the floor crying, Billups was lifted off the floor by a female officer and pushed onto the couch. She then had an asthma attack and felt tingling in her fingers and shooting pains in her arm. She requested her inhaler, which officers found and gave her. Officer Kinsella was never informed that she needed medical attention. Billups refused offers to call an ambulance and did not inform anyone that her shoulder or rotator cuff were hurt.

The search lasted approximately three hours. Officer Kinsella searched the enclosed back porch, and not any rooms in the house (i.e., the living room, dining room, kitchen, bedrooms, or closets). Several male officers remained stationed in the front area of the apartment. Boyce described two of these officers as white with black hair, one slightly taller than the other, and one weighing about 140 pounds and the other 190 pounds. Boyce testified that these two officers did not observe Billups being lifted off the ground because they were too focused on some photographs on the wall. No gun was recovered, but Billups had various items of property taken or destroyed. A ceramic lion was kicked, various hair products ended up in the backyard, Billups's hair dryer and a window were broken, and Pepto-Bismol was poured onto Billups's clothing. A pair of gold earrings and $200 in cash were missing after the search, although Billups could not be sure that an officer took them. Officer Kinsella did not kick the ceramic lion or spill Pepto-Bismol on Billups's clothing. Billups, Boyce, and Boyd were unable to identify from a photo array any of the officers that executed the search warrant or committed any of the actions complained of in this suit. The Chicago Police Department repaired the doors and gate that had been broken during the search.

ANALYSIS

I. Unlawful Search Claim (Count I)

To prevail on her unlawful search claim, Billups must establish that the execution of the search warrant for her apartment was unreasonable. See Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995) ("[T]he method of an officer's entry into a dwelling [is] among the factors to be considered in assessing the reasonableness of a search or seizure.");

Belcher v. Norton, 497 F.3d 742, 747 (7th Cir. 2007). Reasonableness is evaluated from an objective standpoint, considering the facts and circumstances known to the officers at the time. See Graham v. Connor, 490 U.S. 386, 396--97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). While officers generally have discretion in determining how best to execute a warrant, their actions are still subject to the Fourth Amendment's reasonableness requirement. Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979). "Officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry."*fn3 Richards v. Wisconsin, 520 U.S. 385, 387, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997).

Billups first argues that entry was unreasonable because Officer Kinsella broke down the exterior door to the apartment building. The Seventh Circuit, however, has held that an individual does not have a reasonable expectation of privacy in common areas of multiple dwelling buildings, even where access is controlled. See, e.g., United States v. Villegas, 495 F.3d 761, 767--78 (7th Cir. 2007); United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991). Because the front door and common hallway were exposed to the public and used by others residing in the building, Billups's Fourth ...


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