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Kimberly Hicks v. Officer Michael Poppish and City of Chicago

August 25, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.,


Kimberly Hicks ("Plaintiff") has sued the City of Chicago and Chicago Police Sergeant Michael Poppish for violations of state and federal law stemming from her arrest on January 13, 2009. Count I is a claim for false arrest and Count II is a claim for malicious prosecution. Count III purports to seek statutory indemnification against the City in reliance on 745 ILCS 10/9-102. The complaint states that it is brought pursuant to 42 U.S.C. § 1983, for violations of Plaintiff's Fourth Amendment rights. Defendants have moved for summary judgment on all counts [64]. For the reasons set forth below, the Court grants Defendants' motion, and enters judgment for Defendants and against Plaintiff.

I. Factual Background*fn1

At around 9 p.m. on January 13, 2009, Plaintiff and her male companion Geoffrey Guy drove in Plaintiff's Chevy Impala to the Red Lobster restaurant located at 5201 South Pulaski, in Chicago. Unbeknownst to Plaintiff, Guy carried a handgun with him to dinner that evening.*fn2 At the Red Lobster, Plaintiff and Guy met with a music producer, Gabriel, his wife, and two other disc jockeys (D.J.s). After finishing dinner, Guy went with Gabriel and the two D.J.s to listen to music in Gabriel's truck, which was parked outside the restaurant. The four men entered Gabriel's truck, and Gabriel then drove his truck from a parking space on the side of the restaurant to a space directly in front of the restaurant entrance. Gabriel sat in the driver's seat, Guy sat in the passenger's seat, and the two D.J.s sat in the back seat. In the meantime, Plaintiff and Gabriel's wife paid the bill and then walked to Plaintiff's car. Plaintiff drove her car to a parking space next to Gabriel's truck, so that her driver side door was not far from Gabriel's passenger side door.*fn3 Gabriel's wife sat in the passenger's seat of Plaintiff's vehicle.

After Plaintiff and Gabriel's wife, and Gabriel, Guy, and the two D.J.s sat in their respective vehicles for around thirty minutes (they were talking and listening to music), Sergeant Poppish and Detective Amato arrived and approached Gabriel's truck. Sergeant Poppish walked to the passenger door of Gabriel's truck. Guy exited Gabriel's truck, although the parties dispute how he did so-Plaintiff asserts that Sergeant Poppish pulled Guy out of the vehicle, whereas Defendants deny that this was the manner in which Guy exited Gabriel's vehicle.

The parties agree, however, that once Guy was outside Gabriel's vehicle, Sergeant Poppish told Guy to "show me your hands." Defendants maintain that Guy refused to do so and walked back to Plaintiff's car door, although Plaintiff denies these facts. See Pl. Resp. Def. SOF ¶ 14. The parties' stories converge on the facts that the driver's side door of Plaintiff's vehicle was "cracked" open-which Guy noticed at the time-and that the driver's side window on Plaintiff's car was open to some extent (Defendants state that the window was "open" whereas Plaintiff admits only that the window was "partially down").*fn4 Id. at ¶ 16.

The parties agree that Guy then tossed his gun in the direction of Plaintiff's car. Plaintiff admits that she saw Guy throw an object under the driver's side of her car, which she admits was the gun. See Pl. Resp. Def. SOF ¶¶ 18, 19. Defendants assert that Sergeant Poppish saw Guy remove the handgun from his pocket and throw it "toward-into [Plaintiff's] vehicle into the floor of the driver's side of the vehicle." Ex. H to Def. Resp. Pl. SOAF at 35:6-12. Plaintiff vehemently denies that Guy threw a weapon into her car. Upon seeing Guy throw his gun under Plaintiff's car, Sergeant Poppish yelled "gun!" to his partner and attempted to place Guy under arrest, leading to a struggle between Guy and Sergeant Poppish.*fn5

The parties agree that Sergeant Poppish had focused his attention on Guy during the altercation, and that at some point Plaintiff exited her car. Plaintiff walked toward the rear of her vehicle, where Guy and Sergeant Poppish were struggling. Plaintiff was holding a cellular telephone in her hand. See Ex. B to Def. SOF (Hicks Deposition at 69:7-9). Sergeant Poppish asked Plaintiff what she had in her hand. Id. at 69:11-12. Given that, as Defendants allege, Sergeant Poppish had yet to recover the gun that Guy had thrown, Sergeant Poppish told Plaintiff to put her hands on the car and asked Plaintiff where the gun was. Plaintiff responded that she did not know what he was talking about. At some point during the conversation between Plaintiff and Sergeant Poppish, Plaintiff contends that Guy told Sergeant Poppish that Plaintiff had nothing to do with the gun, although Defendants admit only that Plaintiff testified to this comment in her deposition, not that Guy actually made it. The parties do agree, however, that Guy told Plaintiff to "give [Sergeant Poppish] what I gave you." Sergeant Poppish believed that Guy was referring to the gun. Questioning at Plaintiff's and Guy's depositions elicited the fact that when Guy made this statement, he may have been referring to a book of CDs that he had with him that night that contained music that he had created. Nevertheless, Sergeant Poppish testified that he believed that Plaintiff knew the location of the gun and was being purposefully evasive by telling him she did not know anything about a gun. Plaintiff vehemently denies this belief, in part because she argues Sergeant Poppish had seen Guy's gun tossed under Plaintiff's car).

The parties agree that Sergeant Poppish searched Plaintiff's car and found the gun, although the parties dispute as to where. Sergeant Poppish testified at his deposition that Guy directed Plaintiff to tell Poppish where to find the gun, and that Plaintiff told Poppish that it was under the passenger's seat of her vehicle. Sergeant Poppish testified that he did, indeed, find the gun under the passenger's seat of Plaintiff's car. Plaintiff asserts, however, that Sergeant Poppish did not find a gun in Plaintiff's car (but does not offer an explanation as to where he found the gun). The parties do agree that Plaintiff never saw Sergeant Poppish recover the gun from the inside of her car.*fn6

Guy was arrested and later pled guilty to a charge of unlawful use of a weapon. Plaintiff was arrested and charged with possession of a firearm without valid Firearm Owner's Identification ("FOID") Card and aggravated unlawful use of a weapon. She made her initial appearance before a judge on January 14, 2009, and was imprisoned until all charges against her were dismissed on January 20, 2009.

II. Standard of Review

Summary judgment is proper where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Factual disputes that are irrelevant to the outcome of the suit "will not be counted." Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir. 2003) (quotation marks and citations omitted).In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted).

A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the "mere existence of ...

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