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Barry Gilfand, et al v. Sgt. Jeffrey Planey

November 13, 2012

BARRY GILFAND, ET AL., PLAINTIFFS,
v.
SGT. JEFFREY PLANEY, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiffs' Barry Gilfand, Aaron Gilfand, Adam Mastrucci, and Scott Lowarance's (collectively, the "Plaintiffs") Motion for a New Trial on certain claims. For the reasons stated herein, the Court denies Plaintiffs' motion in its entirety.

I. BACKGROUND

This civil case stems from a December 2006 bar fight at the Jefferson Tap bar in Chicago, Illinois. In the early morning hours of December 15, 2006, an altercation between Plaintiffs and Off-Duty Chicago Police Officers Jeffrey Planey, Gregory Barnes, Vincent Matthews, Paul Powers, Matias Padilla, Demetrios Kereakes, and Erika Woosley (collectively, the "Off-Duty Officers") ensued. At some point after the fight escalated, someone at the bar called 911. At various points in time, Responding Officers Kenneth Carlyon, Frederick Collins, Nicole Mayoski, Ana Pina, Donald Lupo, and Gregory Morabito (collectively, the "Responding Officers") arrived at the Jefferson Tap to survey the situation. Allegedly, when Responding Officers Lupo and Collins arrived at the scene, Off-Duty Officer Planey informed them that he had the situation under control and their assistance was not needed. After hearing this, Officers Lupo and Collins left. Later, Responding Officers Mayoski and Pina arrived, however, allegedly Off-Duty Officer Barnes informed them that it was only a minor bar fight. Subsequently, Mayoski and Pina left the scene.

The preceding events are what provided the grounds for this lawsuit. Plaintiffs filed a seven-count Second Amended Complaint against Off-Duty Officers, Responding Officers, and the City of Chicago. Specifically Plaintiffs asserted excessive force claims under 42 U.S.C. § 1983 against all Off-Duty Officers (except Officer Woosley); and the City of Chicago; a § 1983 failure to intervene claim against the Off-Duty Officers, Responding Officers, and the City of Chicago; state law battery claims against the Off-Duty Officers (except Woosley); and state law assault claims against the Off-Duty Officers (except Woosley). Immediately before trial, Plaintiffs voluntarily dismissed Responding Officers Carlyon and Morabito.

On May 7, 2012, the case proceeded to trial. After the Plaintiffs' case-in-chief, the Court granted a directed verdict in favor of the five Responding Officer Defendants -- Lupo, Collins, Pina, Mayoski, and Lieutenant Kinsley -- as well as Off-Duty Officer Woosely, dismissing them from the case. At the close of Plaintiffs' evidence, the Court also found that the Plaintiffs failed to present sufficient evidence that the remaining Off-Duty Officers, (other than Defendant Planey) were acting under the color of law at the time of the incident. Ultimately, the case went to the jury against the six remaining Off-Duty Officers (Planey, Barnes, Padilla, Powers, Kereakes, and Matthews) and the City of Chicago on Plaintiffs' Fourth Amendment excessive force claims, Fourth Amendment failure to intervene/investigate claims, state law battery claims, state law assault claims, and state law respondeat superior claims.

On May 18, 2012, the jury rendered its verdict. In it, the jury ruled as follows:

PLAINTIFF AARON JURY VERDICT IN GILFAND'S CLAIMS: DEFENDANTS CHARGED: FAVOR OF:

Fourth Amendment Defendant Planey Defendant Excessive Force Fourth Amendment Defendant City of Chicago Defendant Failure to Investigate and Discipline

Battery 1) Defendant Planey 1) Plaintiff

2) Defendant Powers 2) Defendant

3) Defendant Barnes 3) Defendant

4) Defendant Padilla 4) Defendant

5) Defendant Matthews 5) Defendant Assault 1) Defendant Barnes 1) Defendant

2) Defendant Matthews 2) Plaintiff Defendant Planey Acting within the Defendant City of Chicago Defendant Scope of His Employment

PLAINTIFF BARRY DEFENDANTS CHARGED: JURY VERDICT IN GILFAND'S CLAIMS: FAVOR OF:

Fourth Amendment Defendant Planey Plaintiff Excessive Force

Fourth Amendment Defendant City of Chicago Defendant Failure to Investigate and Discipline

Battery 1) Defendant Planey 1) Plaintiff

2) Defendant Powers 2) Defendant

3) Defendant Barnes 3) Defendant

4) Defendant Padilla 4) Defendant

5) Defendant Matthews 5) Defendant

Assault 1) Defendant Barnes 1) Defendant

2) Defendant Matthews 2) Plaintiff

Defendant Planey

Acting within the Defendant City of Chicago Defendant Scope of His Employment

PLAINTIFF ADAM DEFENDANTS CHARGED: JURY VERDICT IN

MASTRUCCI'S FAVOR OF:

CLAIMS:

Fourth Amendment Defendant Planey Defendant Excessive Force

Fourth Amendment Defendant City of Chicago Defendant Failure to ...


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