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Barry Gilfand, Aaron Gilfand, Adam Mastrucci, and Scott v. Sgt. Jeffrey Planey

September 9, 2011

BARRY GILFAND, AARON GILFAND, ADAM MASTRUCCI, AND SCOTT LOWRANCE, PLAINTIFFS,
v.
SGT. JEFFREY PLANEY, OFFICER GREGORY BARNES, OFFICER
DEMETRIOS KEREAKES, OFFICER VINCENT MATTHEWS, OFFICER MATIAS PADILLA, OFFICER PAUL POWERS, OFFICER ERICA WOOSLEY, SGT. DALE KINGSLEY, OFFICER KENNETH CARLYON, OFFICER FREDERICK COLLINS, OFFICER NICOLE MAYOSKI, OFFICER ANA PINA, OFFICER JESUS ENRIQUEZ, OFFICER MICHAEL HOWE, OFFICER DONALD LUPO, OFFICER GREGORY MORABITO, AND THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court are the Motions for Summary Judgment on all counts of Plaintiffs Barry Gilfand, Aaron Gilfand, Adam Mastrucci, and Scott Lowrance's Second Amended Complaint from (1) Defendants Jeffrey Planey, Demetrios Kereakes, Vincent Matthews, Matias Padilla, and Erika Woosley; (2) Defendants Paul Powers and Gregory Barnes; (3) Defendants Dale Kingsley, Kenneth Carlyon, Frederick Collins, Nicole Mayoski, Ana Pina, Donald Lupo, Gregory Morabito, Jesus Enriquez, and Michael Howe; and (4) Defendant the City of Chicago. For the reasons set forth below, the Court denies all four Motions.

I. BACKGROUND

Last call did not go smoothly at the Jefferson Tap in the early morning of December 15, 2006. As closing time approached at the Chicago bar, Plaintiffs Barry Gilfand, Aaron Gilfand, Scott Lowrance, and Adam Mastrucci (hereinafter, the "Plaintiffs" or referred to by their first names) played pool. Off-duty Chicago Police Officers Jeffrey Planey, Gregory Barnes, Vincent Matthews, Paul Powers, Matias Padilla, Demetrios Kereakes, and Erika Woosley (hereinafter, the "Off-duty Officers" or referred to by their last names) were at the bar. Shortly after 3:30 a.m., a confrontation began between these two groups. As expected, the parties offer vastly conflicting versions of how this confrontation began.

The pool table on which Plaintiffs played was located near the front of the bar. Plaintiffs claim that they minded their own business and had not interacted with the Off-duty Officers. They claim that as the Off-duty Officers passed the pool table, the Off-duty Officers became aggressive toward them. The Off-duty Officers, on the other hand, claim that Plaintiffs instigated the confrontation by mocking and hurling insults at Powers, who was visibly upset and crying. Powers grieved because his father had recently died, and the approaching Christmas would be his first without his father. The Off-duty Officers claim that they initially approached Plaintiffs and asked them to stop calling Powers names. They also claim that they did not identify themselves as Chicago police officers. Further, they contend that they tried to leave the bar because of the insults, but when Plaintiffs did not stop their verbal assault of Powers, the altercation began.

Regardless of who instigated the confrontation - as this is not dispositive of Plaintiffs' excessive force and failure to intervene claims, as such insults would not give the Off-duty Officers the right to attack Plaintiffs - much of the events were captured by the Jefferson Tap's security video system (albeit without audio). The video has a running time clock. Camera 9 focused on the pool table where the fight began. The video shows Plaintiffs interacting with each other and taking turns shooting pool. Shortly after 3:38 a.m., Powers passed the table, and appeared to say something to Plaintiffs. Padilla pushed Powers past the table, presumably toward the front door. A few seconds later, Matthews appeared and grabbed the remaining balls on the table and put them into the pockets, which ended Plaintiffs' game. Padilla and Kereakes approached the table and Barry, pool cue in is right hand, shrugged his shoulders and made a gesture that appeared to ask something akin to "what's going on?" Padilla reached across the table and grabbed the cue from Barry's hand. Powers approached Barry, bumped him, and appeared ready to fight. The two were separated, and Powers walked away from the table.

Commotion ensued and tensions rose. Matthews, standing at one end of the pool table, waved his hands seemingly to point people toward the front door in an effort to diffuse the situation. Immediately thereafter, however, Powers reappeared and rushed toward one of the Plaintiffs in what appeared to be an aggressive gesture to fight. Kereakes caught Powers and pushed him away.

Thereafter, as can happen late at night in a bar after alcohol has been consumed, what started as a mild dustup turned into a major fight. A commotion broke out in the upper right-hand portion of the video from Camera 9. Planey threw Aaron to the ground on one side of the pool table, and Powers immediately came into view and appeared to hit Aaron. Next, Planey appeared to wrap his left hand around Barry's throat and forcibly push him back. Planey and Padilla then grabbed Scott and threw him down on the pool table with such force that the table moved backward several inches. They wrestled Scott to the ground, and Padilla maintained what appeared to be a chokehold on Scott while he kept him pinned to the ground. Kereakes and Woosley approached Padilla and convinced him to release Scott, who remained on the ground and appeared hurt as several people attended to him. Adam alleges that one of the Off-duty Officers pushed or hit him when he went to help Scott. Scott, who is blind in one eye, alleges that he lost consciousness and that for a short time he thought he had lost sight in his other eye.

When Scott was lying on the ground, Planey approached Barry on the opposite side of the pool table and directed him outside. Barry contends that Planey told him to leave the bar. This occurred around 3:40:20 a.m. Camera 6 captured Planey push Barry by his neck toward the front vestibule. Padilla followed and did not try to disengage Planey from Barry. Powers then appeared and quickly moved to where Planey had pushed Barry up against the wall. Again, Padilla, who was in the vicinity of the vestibule, did not attempt to stop Powers. In the video from Camera 6, only the back of Planey and Powers up to their necks is visible during the confrontation in the vestibule. After a few seconds, Planey, Powers, and Barry exited the bar. The video does not clearly show if Powers and Planey pushed Barry, or if Barry walked out on his own accord.

Camera 1, which captured video outside of the bar and pointed toward the front door, recorded some evidence into what occurred. Close to 3:40:45 a.m., Barry, Powers, and Planey emerged outside, with Powers pushing Barry; Planey then separated Powers from Barry. Planey turned around in response to Barry, who motioned toward the bar's front door. Again, Powers moved toward Barry, and Planey separated them. Planey walked Powers toward the front of the bar, opened the door, pointed inside, and seemed to command Powers to enter the bar. Powers went inside and Planey turned around and walked toward Barry, who threw his hands up. Planey grabbed Barry and slammed him against the outside wall of the bar. Barry alleges that he had tried to take his cell phone out of his pocket to make a call for help, but that Planey took the phone from him.

Powers did not stay inside the bar, and seeing that Planey had pushed Barry against the wall, Powers approached. Planey and Barry disappeared from the video, and Powers followed them outside the camera's view. After about ten seconds, Planey walked toward the bar's front door. He entered the bar, turned around, pointed at someone, and appeared to say something. Powers and Barry were still not in the camera's view. Barry appeared briefly at the bottom of the screen with his hands raised. A stream of people left the bar, and Planey continued to gesture and say something toward where Powers and Barry were located. Powers appeared on the video with his hands on his head, and then he, Barnes, Kereakes, and Matthews moved out of the video, presumably toward Barry. Padilla then walked toward them. Barry claims that the Off-duty Officers attacked him during this time. The Off-duty Officers deny these allegations.

Close to 3:43 a.m., a fight broke out in the bar's front vestibule. This is where Aaron was hit and suffered a broken nose. Padilla has admitted to throwing the punch that broke Aaron's nose, but Aaron insists that Barnes also punched him in the nose. Camera 1 shows the Off-duty Officers who had allegedly assaulted Barry outside the bar rush toward the vestibule and go inside. The cameras did not capture the fight that occurred. Matthews soon emerged and confronted Barry on the street. Matthews seemed to block Barry's entrance to the bar. While outside during this time, Barry walked normally and held his coat in his hand. He did not appear to be in pain. As Barry walked toward the front door and tried to enter, Matthews pushed him away. Planey again confronted Barry and walked Barry away from the front of the bar and out of the camera's view. Scott came out of the bar and walked toward Planey and Barry.

Just before 3:46 a.m., Chicago police squad cars arrived on the scene in response to a silent hold-up alarm pressed by Melissa Smith, the shift manager at the bar, as well as a 911 call that Smith placed. The Defendant officers who arrived at the scene yet did not stay to intervene are referred to collectively as the "Responding Officers," and individually by their last names. The first car to arrive was an unmarked maroon vehicle. Several marked vehicles arrived several seconds later.

When Responding Officers Lupo and Collins arrived at the Jefferson Tap, they exited their marked vehicle to survey the situation. Planey approached them and informed them that the Off-duty Officers had the situation under control. As Lupo and Collins returned to their vehicle, Barry approached them and appeared to plead with them to remain and help. Lupo and Collins did not heed Barry's request and left.

After the first wave of police vehicles left, Camera 1 caught who appears to be Kereakes grab Barry. Kereakes pushed Barry south down the sidewalk away from the bar's front door. Matthews, Barnes, and Planey milled around outside the bar. At almost 3:49 a.m., Carlyon and Morabito arrived in a squadroll wagon, appeared not to exit their vehicle, and left about a minute later. Kingsley arrived shortly thereafter and remained in front of the Jefferson Tap for less than a minute.

Mayoski and Pina arrived next. Bar employee Lindsay Vanderford approached their vehicle and allegedly asked for help. Barnes also approached the vehicle and allegedly told Mayoski and Pina that there had been a minor bar scuffle after Plaintiffs picked on Powers, and that it was "stupid bar stuff." Jefferson Tap owner Jodi Agee ("Agee") approached the car as well and asked for help. Plaintiffs allege that while Agee talked to Mayoski and Pina, Agee could hear ...


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