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Markee Cooper, Sr., Zion Cooper and, Markee Cooper, Jr., By and v. Chicago Police Officers S. Dailey

September 28, 2011

MARKEE COOPER, SR., ZION COOPER AND, MARKEE COOPER, JR., BY AND THROUGH THEIR PARENTS AND GUARDIANS MARKEE COOPER, SR. AND SHENITA COOPER, PLAINTIFFS,
v.
CHICAGO POLICE OFFICERS S. DAILEY, NO. 10890, M. BONNSTETTER, NO. 15963, F. MACK, NO. 198404,
J. FRANO, NO. 11772, R. PUCILLO, NO. 16850, W. JOHNSON, NO. 17442, A. MONACO, NO. 19253, S. LAURETTO, NO. 5882, V. FICO, NO. 6284, L. WILLEMS, NO. 7394,
M. NAPOLI, NO. 9560, S. REINA, NO. 2622, D. ROSS, NO. 177, G. DE SALVO, NO. 218, AND THE CITY OF CHICAGO, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Markee Cooper, Sr., individually and on behalf of his minor sons Zion and Markee, Jr., filed a first amended complaint [56] asserting claims under Illinois state law and 42 U.S.C. § 1983 against the City of Chicago and fourteen individual Chicago police officers (the "Defendant Officers"). All of Plaintiffs' claims arise out of the February 17, 2007 search of their home by the Defendant Officers, which was conducted pursuant to two search warrants issued based on information that Defendants contend was provided by a confidential informant.

Currently before the Court is Defendants' motion for summary judgment [173] as to Counts I, II, III, IV, VI,*fn1 VII and VIII of the Plaintiffs' first amended complaint. Counts I and II allege that Defendants' assaulted Markee Cooper's sons, Markee Cooper Jr. and Zion Cooper, by employing a canine to conduct the search of the apartment. Counts III, IV, and VI all allege violations of Plaintiffs' Fourth Amendment rights to be free from unreasonable searches and seizures.*fn2 Court VII alleges that Defendants' caused intentional infliction of emotional distress through the execution of the search warrant. Count VIII alleges that Defendants conspired to deprive Plaintiffs of their constitutional rights by concocting probable cause for the search warrants that led to violations of their Fourth Amendment rights. Individual Defendants alternatively argue for summary judgment on the basis of the doctrine of qualified immunity. For the reasons stated below, Defendants' motion for summary judgment [173] is denied with respect to Counts III, IV, VI, VIII and the issue of qualified immunity, and granted with respect to Counts I, II and VII. In addition, Defendants' motion to deem admitted and strike Plaintiffs' Local Rule 56.1 statement of additional facts in part [201] is denied, and Plaintiffs' motion to supplement their Local Rule 56.1 statement of additional facts [211] is denied without prejudice as moot.

I. Background*fn3

This is the third motion for summary judgment before the Court in this case. In its Order of March 31, 2010, the Court denied Plaintiffs' motion for partial summary judgment as to liability on Count VI, finding that whether the Defendant Officers reasonably should have known that there was a mistake in the warrants (and therefore should have immediately called off their search) presented a genuine issue of material fact for trial. [142]. In its Order of September 23, 2010, the Court denied Plaintiffs' motion for partial summary judgment as to liability on Counts III, IV, and IV, finding that Plaintiffs' assertions that the City's policies cause judges to be misled was too speculative, and that evidence regarding one police officer, Defendant Officer Dailey, was too sparse to establish a widespread practice of misconduct under Monell v. Dep't. of Social Servs. of City of New York, 436 U.S. 658 (1978) and its progeny [161].

In the March 31 and September 23 Orders, the Court provided a more complete background relevant to the events of February 17, 2007, which it will not repeat in full here. For the purposes of this motion, the Court notes that the parties agree that in the early hours of February 16, 2007, Defendant Officer Sean Dailey swore out two complaints for warrants to search 1015 N. Laramie. In the first complaint, Dailey requested a warrant to search the basement apartment of 1015 N. Laramie for drugs and an individual named Lawrence Tolliver. Dailey stated in the complaint that a confidential informant told Dailey that he (the informant) had purchased "rocks" (crack cocaine) from an individual known as Lawrence Tolliver on several occasions from the basement apartment at 1015 N. Laramie. The first complaint resulted in Search Warrant 07SW4512, authorizing the search of the basement apartment of 1015 N. Laramie.

In the second complaint, Dailey request a warrant to search the second floor apartment of 1015 N. Laramie for drugs and an individual with the nickname Guy. Dailey reported that he relied on the information provided by the same confidential informant whose information supported the first complaint. The second complaint resulted in Search Warrant 07SW4513 authorizing the search of the second floor apartment of 1015 N. Laramie. Defendant Officers Dailey and Bonnstetter testified that the information in the search warrants came from their confidential informant, Lamar. Dailey and Bonnstetter were the only Defendants who claim to have interacted with Lamar. Dailey also testified that Lamar had helped him with past arrests. Plaintiffs submit that Lamar does not exist and further contend that Defendants have not come forward with any evidence to corroborate the testimony of Officers Dailey and Bonnstetter that Lamar does exist. Plaintiffs also assert that the Defendant Dailey lied about printing Lawrence Tolliver's photo off of the CLEAR system and failed to run any additional checks before executing the search warrant, which would have alerted Defendants to their impending mistake.

Sometime after 5:00 p.m. on February 16, 2007, Judge Nicholas Ford issued the two search warrants that Officer Dailey requested. Shortly thereafter, Officer Dailey met with his team and gave out assignments to team members. Around 7:00 p.m., Defendants executed the search warrants, simultaneously entering both the basement and second floor apartments of 1015 N. Laramie. The officers who went to the basement observed that it was unfinished and unoccupied and appeared to be used only for storage and laundry-in short, it was not the basement apartment that the team had expected to find. When the team entered the second floor apartment, they found Markee Cooper-who identified himself as a Chicago Police Officer- his wife, two children, and another woman-not the "party house" that they expected to find based on the information in the warrant. Upon learning that the second floor apartment belonged to a police officer, Defendant Officer Napoli told the officers in the basement to stop the search, which they did.

The parties disagree about the conversation that ensued, including whether the Coopers had ever heard of Lawrence Tolliver or received any mail addressed to him. The parties do not disagree, however, that following the disputed discussion, Defendant Lieutenant Ross called in a canine unit to search the basement and second floor apartment for drugs. At that point, Markee Cooper called his supervisor, who instructed him to cooperate with the search. The canine unit arrived shortly thereafter and conducted a sniff search of the second floor apartment and basement. The presence of the dog startled Markee's children, even though Markee had told them that the dogs were coming. The dog was leashed and present for approximately ten to fifteen minutes. The parties dispute whether the dog was muzzled and whether it barked or merely made ordinary dog sounds. The dog did not attack any of the plaintiffs.

II. Legal Standard on Summary Judgment

Summary judgment is proper if "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). 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, Ind.,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). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.

III. Analysis

A. Counts III, IV, VI, ...


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