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Timothy D. Petty v. City of Chicago

January 12, 2012

TIMOTHY D. PETTY, PLAINTIFF,
v.
CITY OF CHICAGO, ET AL.,
DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Timothy Petty ("Petty") filed suit against the City of Chicago and individual police officers (collectively, "Defendants") alleging they violated his constitutional rights by charging, arresting, incarcerating and prosecuting him for murder based on witness identifications that he claims were coerced. Petty alleges that Defendants concealed evidence and failed to disclose their misconduct in violation of the Due Process Clause under the Fifth and Fourteenth Amendments of the Constitution and Brady v. Maryland, 373 U.S. 83, 87 (1963). In addition, Petty asserts state law claims against Defendants for false imprisonment, malicious prosecution, intentional infliction of emotional distress, and conspiracy.

Defendants move for summary judgment, contending that Petty's acquittal at his criminal trial extinguishes his Brady claim and establishes probable cause to eliminate his state law claims. For the reasons stated in this opinion, Defendants' motion for summary judgment is denied in part and granted in part.

I. Undisputed Facts

The district court may require strict compliance with Local Rule 56.1. See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004); Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 527 (7th Cir 2000) (strict compliance with the local rules governing summary judgment is upheld given the importance of local rules that structure the summary judgment process); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs"). The court may disregard statements and responses that do not comply with Local Rule 56.1. See Cichon v. Exelon Generation Co., 401 F.3d 803, 809-10 (7th Cir. 2005).

In response to Defendants' motion, Petty admitted that all of the facts identified by Defendants are true; all 72 are deemed admitted. See Chelios v. Heavener, 520 F.3d 678, 687 (7th Cir. 2008); L.R. 56.1(b)(3)(B). Petty filed 169 additional facts in opposition without having received leave from this Court, thereby prompting Defendants to file a motion to strike all facts in excess of the 40 allowed by Local Rule 56.1 and without waiving their objection, answered the statements in the spirit of caution and efficiency. (Docs. 132, 135). The Court strikes Petty's additional facts in opposition in excess of the 40, additionally noting that most were unacceptably argumentative or failed to cite to specific support in the record. See Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("'Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'").

A. The Shooting and the Identifications

In the middle of the night of October 18, 2003, a group of men sat smoking marijuana on a porch on the north side of Chicago. (Doc. 120, Def's SOF § 4, 7, 30). Two shooters walked up with handguns and opened fire; as a result, one man died and two were wounded, including Sebastian Moore ("Moore"). (Def's SOF § 4, 7). Just minutes after the shooting, officers arrived at the chaotic scene and were advised by some of the men (in dispute is which individuals provided the description) that the shooters were black, 16 to 18 years old and 5'0" to 5'5" inches tall who were wearing dark clothing, masks and skull caps. (Def's SOF § 25; Doc. 135, Def's Resp. to Pltf's SOF § 34-37). Petty asserts that he was 22 years old and 5'11" at the time of the shooting; though he does not provide a reference to properly support this assertion, a police officer who was present at the scene later testified at his deposition that if Petty was in fact 5'11" and 190 pounds, then Petty would not fit the description that the witnesses gave to him and his fellow officers. (Def's Resp. to Pltf's SOF § 39). Defendants were told that the men on the porch had been drinking cognac and "smoking weed." (Def's Resp. to Pltf's SOF § 22). Officers brought Frederick Tarver ("Tarver") and Mario Parker ("Parker") to Area 3 for further questioning, and Tarver testified at his deposition for this case that Parker was the one who said the shooter looked like "Spank." (Doc. 130-8, Pltf's SOF Ex. K, p.55). Tarver also said that he remained at Area 3 for questioning for approximately 12 hours. (Def's SOF § 46). Defendant Detective Harry Fenner ("Fenner") testified that he showed Tarver a photo array of six individuals, later during the 15-16 hour confinement, from which Tarver selected the photo of Petty and signed the array. (Def's SOF § 28).

On November 29, 2003, Petty was arrested pursuant to an outstanding warrant for drinking in a public way. (Def's SOF § 5). On November 30, 2003, Moore was interviewed by officers and described the two shooters as being: a black male wearing a black doo-rag with braids hanging out, with a black sweatband over it, black jacket, with very light eyes; and a black male wearing a black pullover hoody. (Def's SOF § 6). That day, officers conducted a line-up with Petty, and Fenner testified that Tarver identified Petty as a shooter, and that Moore also identified him as a shooter but that Petty had changed his hairstyle. (Def's SOF § 29, 8). A Defendant officer testified at his deposition that Moore left the police station and returned on December 1, 2003. (Def's SOF § 9). However, in contrast with the officer's account, Tarver later testified that he and Moore returned to the police station because officers kicked in the door to Tarver's home, handcuffed both Tarver and Moore, and took them to the police station, after repeated calls threatening him that he had to identify and testify against Petty even though Tarver did not know for sure whether Petty was the shooter. (Def's SOF § 39, 43).

On December 1, 2003, Assistant State's Attorney Marcelle LeCompte (the "ASA") became involved in this criminal matter when she made the decision, in consultation with her supervisor, to charge Petty with murder and aggravated battery with a firearm. (Def's SOF § 10). The ASA stated at her deposition that she could not recall whether she ever interviewed Tarver or Moore before charging Petty, nor can she tell from her file whether she met with Tarver or Moore, but stated that "I am an extremely diligent attorney, and if witnesses were there to be spoken with, I would have spoken with them." (Def's SOF § 11).

The grand jury heard testimony from six people on December 9, 2003, including Tarver, and Moore who testified that the person he saw shoot him was the person he identified in the lineup, but that he did not know him. (Def's SOF § 15). Petty's girlfriend Saidah Holloway ("Petty's girlfriend") also testified that the photo of the person in the line-up was "Spanky" whose real name is Petty. (Def's SOF § 17). The grand jury indicted Petty for murder and aggravated battery with a firearm on December 19, 2003. (Def's SOF § 18).

B. Petty's Motions Before Trial and Bench Trial

On February 25, 2005, Petty filed a motion to quash his arrest and suppress the line-up identifications in his criminal matter. (Def's SOF § 19, 20). The state court judge heard arguments from Petty's counsel and testimony from Defendant police officers, including Fenner who testified that on the night of the shooting, Tarver said that one of the people shooting was someone he knew by the name of "Spank" who was a member of the Gangster Disciple gang from the Thorndale area. (Def's SOF § 26). Fenner also testified that Petty had told him that on the night of the shooting, he had been at a dance club with his girlfriend; when Fenner interviewed Petty's girlfriend, she said that at whatever day and time that Petty said they were together at the dance club is when they were there. (Def's SOF § 31-32). The state court judge denied Petty's motion on June 23, 2005, stating: "I find that the police investigation showed that there was, indeed, probable ...


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