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Troy Clark and Tamira Smyth v. P.O. Albert D. Powe

January 3, 2012

TROY CLARK AND TAMIRA SMYTH, PLAINTIFFS,
v.
P.O. ALBERT D. POWE, #18203, MIGUEL RESTO, MICHAEL ELLIS, JOHN DOE 2-5, DETECTIVE RANDALL BACON, INDIVIDUALLY, AND THE CITY OF CHICAGO,
DEFENDANTS.
MARCELO GONZALES, PLAINTIFF,
v.
P.O. ALBERT D. POWE, #18203, MIGUEL RESTO, MICHAEL ELLIS, JOHN DOE 2-5, DETECTIVE RANDALL BACON, INDIVIDUALLY, AND THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Judge Sharon Johnson Coleman

Consolidated.

MEMORANDUM OPINION AND ORDER

Plaintiffs Troy Clark, Tamira Smyth, and Marcelo Gonzales filed two complaints alleging various federal and state claims arising from an incident on March 9, 2007, during which plaintiffs allege they were held captive, beaten, and robbed by several individuals including at least one Chicago police officer, Albert Powe. Plaintiffs also allege conspiracy to cover up wrongdoing by police officers against Detective Randall Bacon, the investigating officer. Defendants have filed four motions for summary judgment, which the Court will address in the instant order.

Background

The following facts are undisputed unless otherwise noted. In March 2007, Tamira Smyth lived at 1646 N. Bosworth in Chicago, Illinois. Her boyfriend, Troy Clark lived at 4800 S. Lake Park in Chicago, Illinois. Troy Clark uses the nickname "Silk". Marcelo Gonzales worked for Clark as a subcontractor. Gonzales met Clark in February 2007, approximately two weeks before the incident.

On March 9, 2007, Tamira Smyth returned home around 11 am after running errands. When she pulled into her garage, a blue Crown Victoria blocked her in and a man*fn1 ("Man #1") got out. He was dressed in street clothes and wore a black baseball cap with a police patch on the front. Man #1 came up to Smyth's car window and asked her at gun point to get out of the car. He handcuffed her and told her it was about her friend "Silk." A second man ("Man #2") walked up. Smyth could see a blue and white car, which she believed to be a police car, parked behind the Crown Victoria. The blue and white car left and Man #1 took Smyth up to her apartment.

Inside Smyth's apartment, Man #1 asked her where the drugs and money were and Smyth responded that there were not any in the apartment. Smyth remained handcuffed until she asked to use the restroom. While Smyth was in the bathroom, Man #2 came in and threatened her with a gun. She could hear the two men ransacking her apartment. After coming out of the bathroom, Smyth was bound with duct tape instead of re-handcuffed. Smyth believes Man #2 left her apartment between noon and 1:00 p.m. and that she was alone with Man #1 for one to one and half hours, but she is not sure.

Clark and Gonzales arrived at Smyth's apartment around 5:00 pm. Gonzales waited in the car, while Clark went upstairs. Clark was grabbed, bound with duct tape, and beaten as soon as he entered Smyth's apartment. Two men ("Man #3" and "Man #4") approached Gonzales while he waited in the car. They announced they were police and both had guns. They took Gonzales up to Smyth's apartment where he was blindfolded with duct tape. Gonzales heard Clark being beaten and other noises for over an hour before it went silent.

Smyth overheard Man #2 on his cell phone saying the money might be at another location. Sometime after dark, around 6:30 or 7:00 p.m. Man #2 had Smyth drive her car to Clark's residence at 4800 S. Lake Park. On the way, Smyth overheard Man #2 on the phone saying something about having a police car at Clark's when they arrived. Smyth testified that she thought it was Man #1 on the phone. Smyth saw a police car in front of Clark's building. The security guard let them in and Man #2 had Clark's keys. Man #2 searched Clark's apartment for approximately 30 minutes. Smyth left with Man #2 and returned to her apartment. The police car was still parked in front of Clark's building when they left.

When Smyth and Man #2 arrived back at Smyth's apartment, Clark and Gonzales were still there with Man #3 and Man #4. When Clark heard Smyth and Man #2 return without finding any money, he told the men about the $5000 in his laptop case. Approximately four or five hours passed before Gonzales and Clark were taken out of the apartment and put in car. They were driven for fifteen or twenty minutes. When the car stopped, Clark and Gonzales were taken down to a basement. Clark was beaten again and Gonzales was hit in the head three times with a two-by-four. Gonzales remained blindfolded and could not see who hit him or Clark. Somebody took $800 from Gonzales and then put him in a car trunk for five minutes before letting him go. When Gonzales got out of the trunk he saw Clark injured nearby. They were in an alley and walked out to the street where they were able to call the police and an ambulance. They later learned that they were in Harvey. Gonzales and Clark arrived at the hospital around 1:00 a.m. on March 10, 2007. Smyth was left alone at her apartment at 8:24 p.m. She called 911 a little after midnight.

Ten days after the incident, Clark and Smyth were interviewed by Federal Bureau of Investigation Special Agents Ashcroft and Samuels. During the interview, Clark told the agents and Detective Randall Bacon of the Chicago Police Department Internal Affairs division that three people, Stan Ellis, his brother Michael Ellis, and Gregory Jackson were capable of carrying out the incident. Clark admitted to the FBI agents and Detective Bacon that he initially thought Smyth could be involved.

Detective Bacon was assigned to investigate because Gonzales had told police that one of the perpetrators announced himself as police. Bacon's investigation was separate and in addition to the criminal investigation conducted by Area 5 detectives. Bacon obtained tracking reports to determine whether any Chicago Police vehicles were in the vicinity of either Smyth's apartment or Clark's at the time of the incident. None were reported. Bacon facilitated a photo array session for Smyth in which she viewed thousands of photos over several hours and viewed two live lineups with her lawyer present. Smyth identified Officer Powe as one of the assailants. Bacon investigated Powe based on Smyth's identification. He determined from dispatch and radio records that Powe worked on March 9, 2007, from 4:00 p.m. to 12:30 a.m. in the same district as 4800 S. Lake Park. Bacon obtained various police records but none provided any information to verify the presence of police personnel. Bacon also obtained sergeant's logs from Powe's district and visited 4800 S. Lake Park to get any surveillance video. Bacon reviewed Powe's arrest history and found no connection to plaintiffs. Bacon also requested name search reports to find any potential links. Bacon subpoenaed Powe's cell phone and direct connect ("chirp") telephone records to identify callers. Bacon had the Illinois State Police Crime lab analyze physical evidence from Smyth against Powe's DNA and fingerprints. No match was found. The analysis performed by the Illinois State Police did reveal a match to Miguel Resto. Clark and Gonzales also identified Resto from a lineup facilitated by Bacon. Powe gave a statement and was interviewed by Detective Bacon. He provided an alibi, stating that he was working on his mother's bathroom with help from Leslie Irving prior to his 4:00 p.m. shift on March 9, 2007. Bacon spoke to Leslie Irving to confirm the alibi. Bacon recommended to his superiors that the charge not be sustained because there was a lack of evidence tying Powe to the incident.

In his deposition, Clark claimed that Bacon failed to pursue certain steps that amounted to abandoning the investigation, including failing to check tower records on Powe's cell phone, holing back Powe's phone records for two years, and failing to interview Stan Ellis, Gregory Jackson or Mike ...


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