Name of Assigned Judge Sitting Judge if Other or Magistrate Judge than Assigned Judge
CASE TITLE DOCKET ENTRY TEXT
Motion by Defendants Northeast Illinois Regional Commuter Railroad Corporation, L. Luster, and L. Geans for summary judgment  is denied.
O[ For further details see text below.] Docketing to mail notices.
In the early morning hours of July 5, 2007, plaintiffs Venus Horne ("Horne") and her then-thirteen year-old daughter, Kashmire Clemons ("Clemons") (together, "plaintiffs"), were waiting for a train at the Van Buren Street Metra station. Horne and Clemons were with a number of other family members, including Horne's seven-year-old twins, and her friend, Dorothy Williams ("Williams"). While they waited for the train, the twins were running around in a circle, pushing the stroller carrying the infant child of Horne's niece.
The trouble began when Metra police officer Lyndell Luster ("Luster") approached Horne and Williams. Precisely what Luster said and what happened next is disputed. Under Fed. R. Civ. P. 56, however, the evidence of the non-movant must be believed and all justifiable inferences must be drawn in the non-movant's favor. According to evidence cited by the plaintiffs, Luster asked, "Whose mother fucking kids are these?" and said, "You need to get these mother fucking kids." Horne was speechless and said nothing in response. As Luster began argue with Williams, Horne and her children boarded the train, standing in the vestibule area because no seats were available. Luster then began yelling at Horne, calling her names such as "bitch." Horne claims that she was frustrated and embarrassed by Luster's conduct, and that at one point she swore back at him.
According to plaintiffs, officer Larry Geanes ("Geanes")then boarded the train and "got in [Horne's] face," cursing, calling her names, and spitting in her face as he yelled. Geanes grabbed Horne, pulled her off of the train, threw her down on the platform, forcibly handcuffed her by placing a knee on the back of her shoulder, and dragged her on the ground for a few feet. While this was taking place, Clemons walked towards her mother to see what was happening. When Geanes saw Clemons approach, he punched her in the face.
Horne was charged with resisting arrest, disorderly conduct, and battery. No charges were brought against Clemons. After a jury trial in April 2008, Horne was found not guilty of battery but guilty of resisting arrest and disorderly conduct. Due apparently to the post-deliberation impanelment of a juror, Horne had to be tried again on the latter two charges. After a bench trial in March 2009, she was found not guilty of resisting arrest and disorderly conduct.
Horne and Clemons subsequently filed a four-count complaint against defendants Geanes, Luster, and Metra. Defendants have moved for summary judgment. As explained below, the motion is denied.
Count I alleges that Luster and Geanes violated 42 U.S.C. § 1983 by subjecting the plaintiffs to unreasonable seizures and depriving them of their Fourth Amendment rights. The defendants contend that summary judgment should be granted in favor of Luster because he had no physical contact with either of the plaintiffs. Plaintiffs agree that Luster had no physical contact with Clemons; but plaintiffs say that they do not seek to hold Luster liable for violating Clemons's rights. See Pls.' Resp. at 5 n.4. On the other hand, plaintiffs do claim that Luster violated Horne's rights, and they have adduced evidence -- from Luster's own deposition -- that he assisted Geanes in handcuffing Horne. Hence, insofar as Luster is concerned, defendants' motion to dismiss Count I is denied.
As to Geanes, the defendants argue that they are entitled to summary judgment because Geanes had probable cause to arrest Horne. Specifically, defendants argue that Geanes had probable cause to arrest Horne for resisting a lawful order of a law enforcement officer when she refused to obey his order to calm down and stop creating a disturbance. But Horne expressly denies that she was ever given an order to cease and desist by Geanes. See Pls.' Ex. E at 84:18-20. Rather, Horne claims that she was told only to "watch her fucking kids" and to "shut the fuck up." Further, even assuming that Horne continued to argue with Geanes after he ordered her to calm down, it would not necessarily follow that he had probable cause to arrest her for resisting. See, e.g., Gonzalez v. City of Elgin, 578 F.3d 526, 538 (7th Cir. 2009) ("It is well settled under Illinois law ... that the resistance must be physical; mere argument will not suffice. In fact . . . the First Amendment protects even profanity-laden speech directed at police officers.")(quotation marks and citations omitted).
I also reject Geanes's argument that he is entitled to qualified immunity in connection with Count I. "With an unlawful arrest claim in a § 1983 action when a defense of qualified immunity has been raised, [the Count I court will] review to determine if the officer actually had probable cause or, if there was no probable cause, whether a reasonable officer could have mistakenly believed that probable cause existed." Wollin v. Gondert, 192 F.3d 616, 621 (7th Cir.1999). As previously stated, Horne claims that she was never given an order to cease and desist. If in fact she never was given such an order, it goes without saying that no officer could reasonably have believed that he had probable cause to arrest her for refusing to obey the order.
Finally, although Count I's unreasonable seizure claim is alleged against Geanes by both Horne and Clemons, defendants argue for summary judgment only with respect to Horne's claim against Geanes. Having failed to address Clemons's unreasonable seizure claim against Geanes, the argument is forfeited. See, e.g., United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991).
In Count II, both Horne and Clemons assert a § 1983 claim against Geanes for excessive force. Excessive force claims brought pursuant to § 1983 are analyzed under the Fourth Amendment's reasonableness standard. See, e.g., McCoy v. Harrison, 341 F.3d 600, 605 (7th Cir. 2003). Defendants simply insist that Geanes used a reasonable amount of force in his encounter with the plaintiffs. But based on plaintiffs' account of the facts, Geanes's use of force was almost entirely unprovoked and a jury could reasonably conclude that his use of force was excessive. Defendants contend that the plaintiffs' version of the incident is not credible. They claim that the plaintiffs offer an "unlikely scenario where, for reasons and motivations unknown, two Metra police officers randomly selected" Horne, who "suddenly and without warning became the target of Officer Luster's verbal barrage." Reply at 2. Accepting this argument would clearly require me to weigh the evidence, which is plainly forbidden on a motion for summary judgment. The defendants complain that the plaintiffs' account of the incident is based almost entirely on their own statements about what happened. While this is largely true, it is beside the point, for the Seventh Circuit has "long held that a plaintiff may defeat summary judgment with his or her own deposition." Paz v. Wauconda Healthcare and Rehabilitation Centre, LLC, 464 F.3d 659, 664-65 ...