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Dean v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

August 5, 2012

James DEAN, Jr., Plaintiff,
CITY OF CHICAGO and Chicago Police Officer R. Fiorito, Defendants.

Page 700

Jon F. Erickson, Michael D. Oppenheimer, Erickson & Oppenheimer, Ltd., Torreya Lyn Hamilton, Hamilton Law Office, Chicago, IL, Christopher L. Petrarca, Sraga Hauser, LLC, Oak Brook, IL, Jane Ellen Li, Sraga Hauser, LLC, Flossmoor, IL, for Plaintiff.

Daniel Matthew Noland, Paul A. Michalik, Terrence Michael Burns, Dykema Gossett PLLC, Daniel Francis Gallagher, Ghazal Sharifi, Lawrence S. Kowalczyk, Stacey McGlynn Atkins, Querrey & Harrow, Ltd., Chicago, IL, for Defendants.


MATTHEW F. KENNELLY, District Judge:

James Dean, Jr. has sued the City of Chicago and former Chicago police officer

Page 701

Richard Fiorito, claiming that Fiorito arrested him without probable cause and made false statements that caused him to be charged with a crime. Dean has asserted two claims against Fiorito: a Fourth Amendment claim under 42 U.S.C. § 1983 and a state law claim of malicious prosecution. Dean has also asserted two claims against the City: a claim under 745 ILCS 10/9-102 for indemnification of any liability of Fiorito, and a claim under section 1983 alleging that the City caused the constitutional violation by having a policy of failing to investigate and discipline Fiorito and other officers for similar misconduct. The Court previously severed the policy claim for trial.

Fiorito and the City have moved for summary judgment. For the reasons stated below, the Court denies the motions.


Because the defendants have moved for summary judgment, the Court construes the facts as favorably to Dean as the record reasonably permits. See, e.g., Sroga v. Weiglen, 649 F.3d 604, 605 (7th Cir.2011).

On October 1, 2007, Dean went to Japonais Restaurant in Chicago in the early evening. While there, he had one shot of tequila. Upon leaving the restaurant, Dean got into the car that he had driven there, which belonged to a friend. He drove the car to a bar in the Lakeview neighborhood, where he picked up a real estate client whom he intended to show around the area. Less than ten minutes after Dean started driving, Officer Thomas Walsh pulled him over and told him that he was " driving left of center." Dean Dep. at 73:13. Dean gave Walsh his driver's license, but when he looked for insurance, he found that the car's owner had not left it in the glove compartment. Walsh ran Dean's license and determined that it had been suspended, which Dean does not dispute. Walsh then told Dean that because of the suspension and lack of insurance, he would have to detain Dean and impound the car. In this lawsuit, Dean does not challenge his detention at the hands of Walsh.

Walsh took Dean to the nearby police station located on the corner of Addison and Halsted Streets. It took around two hours to book and process him. Dean testified that he had no complaints with how he was treated during this process. The officers handling his booking gave him several citations and released him.

Neither Walsh nor Officer Long, who transported Dean to the police station, detected any odor of alcohol on Dean or any sign of impairment. Neither of them saw any reason to conduct any sort of a DUI investigation.

When he left the police station, Dean saw that the car he had been driving was parked immediately in front of the station on Addison Street. The car was facing west and was parked next to a fire hydrant. Dean does not know who brought it there. He believed the car had been impounded, although it later turned out that this was not the case. Dean did not have the keys, but the car's doors were unlocked. Dean opened the car door and retrieved his cell phone. Standing somewhere near the car, Dean telephoned Walsh and left him a voice mail message " thanking him for his professionalism." Id. at 92:3.

Immediately after leaving the message, Dean saw a police squad car pull up on Addison behind Dean's friend's vehicle. A police officer in the car— Officer Fiorito— " yell[ed] through his loud speaker to move the [god-damned] car," several times. Id. at 92:17-23. Dean " attempted to inform him that I did not park the car there, that I did not think it was okay for me to move a vehicle that was impounded and that he

Page 702

should just speak to Officer Walsh who had just arrested me." Id. at 93:10-14. There is evidence that Fiorito heard Dean's reference to Officer Walsh, because according to Dean, Fiorito belligerently said that " he didn't care who parked the car there, to get into the [god-damned] car and move it because that's for police parking only. You can't park by a hydrant." Id. at 93:17-20.

Dean testified that at that point, " I had to make a gut decision as to whether or not to do what the police officer said, and so I did." Id. at 102:2-4. He got into the car and was able to start it using a push-button system. He saw that there was a spot available directly across Addison. Fiorito claims that Dean did a U-turn, but Dean testified otherwise. Specifically, Dean testified that he entered into the traffic lane, made a left turn into a gas station, and then did a " reverse maneuver" and parked in the spot he had seen. Id. at 106:13-19. See also id. at 108:7-19 (answering a question fro Fiorito's lawyer about this " three point turnabout" and repeating that he had pulled into the gas station and performed a three-point turn).

After Dean had parked in this spot and as he was getting out of the car, Fiorito again pulled up behind him and " yell[ed]" on his loudspeaker, " that's for police officers only." He told Dean to " stay in the car and to move the [god-damned] car." Id. at 107:12-17. At that point, Dean pulled back out into the traffic lane, drove to the intersection of Addison and Halsted, waited for the traffic light to turn green, crossed Halsted, and parallel parked on the south side of Addison Street east of the intersection. Id. at 124:22-125:3.

After Dean parked in this third spot, Fiorito approached the car and performed a field sobriety test. Fiorito asked Dean if he had had anything to drink, and Dean said that he drank a shot of tequila " [e]arlier in the day," although he does not recall exactly what time he said he drank it. Id. at 113:6. Fiorito decided to administer sobriety tests. He had Dean walk a straight line and touch his nose, among other things. Dean testified that he passed all of these tests. Id. at 114:12. Fiorito asked Dean to take a breathalyzer test. Dean refused, stating that his cousin, who worked for the highway patrol, had told him never to take a breathalyzer test. At some point, Fiorito asked Dean for his driver's license. Dean gave Fiorito the tickets he had just received. Fiorito learned from looking at these tickets that Dean had just been cited for driving on a suspended license. Pl.'s Resp. to Fiorito's L.R. 56.1 Stmt. ¶ 54.

Fiorito placed Dean under arrest and handcuffed him. Fiorito then got into Dean's friend's vehicle and moved it. He then walked Dean to the police station. He referred to Dean with a racial slur while he did so. Dean Dep. at 114:4-7. Once at the station, Fiorito attached Dean's handcuffs to a pipe and booked him. He informed Dean that if Dean refused to take a breathalyzer test, his driver's license would be suspended for six months. Dean refused to take the test. Fiorito issued tickets to Dean for eight offenses: blocking an intersection, improper traffic-lane usage, driving on a suspended license, operating an uninsured motor vehicle, driving under the influence of alcohol, failure to provide notice of address change, failure to wear a seatbelt, and improper U-turn. Dean was then released from the police station.

On January 22, 2009, Dean appeared in Cook County Circuit Court. Pursuant to a plea agreement, he pled guilty to the citations Walsh had issued for driving on a suspended license and operating an uninsured motor vehicle. In exchange for the plea and payment of a fine on these offences,

Page 703

the state agreed to file a " motion SOL" regarding the citations issued by Walsh for failure to wear a seatbelt and carry a driver's license. The judge accepted the plea bargain. At the same hearing, the judge granted a nolle prosequi motion by the state regarding the citations issued by Fiorito.


Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lexington Ins. Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir.1999); Fed.R.Civ.P. 56(c). A court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

1. False arrest

" The existence of probable cause to arrest a suspect for any offense, even one that was not identified by the officers on the scene or in the charging documents, will defeat a Fourth Amendment false-arrest claim." Sroga, 649 F.3d at 608 (citing Devenpeck v. Alford, 543 U.S. 146, 153-54, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). " A police officer has probable cause to arrest if a reasonable person would believe, based on the facts and circumstances known at the time, that a crime had been committed." McBride v. Grice, 576 F.3d 703, 707 (7th Cir.2009). " Probable cause requires more than a bare suspicion of criminal activity, but it does not require evidence sufficient to support a conviction." Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 679 (7th Cir.2007).

Defendants claim that Fiorito had probable cause to arrest Dean for five reasons: Fiorito's observation of Dean's vehicle blocking a fire hydrant; Fiorito's observation of Dean executing an illegal U-turn; Fiorito's discovery that Dean was driving without proof of insurance and on a suspended license; Dean's admission that he had consumed alcohol before driving; and Dean's having failed field sobriety tests.

a. Fire hydrant

Although Dean was not cited for blocking a fire hydrant, " probable cause to believe that a person has committed any crime will preclude a false arrest claim, even if the person was arrested on additional or different charges for which there was no probable cause." Id. at 682 (emphasis in original). In addition, " [i]t is not a violation of the Fourth Amendment to arrest an ...

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