United States District Court, N.D. Illinois, Eastern Division
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For Noel Padilla, Socorro Padilla, Lourdes Padilla, Irene Santiago, Erling Johnson, Plaintiffs: Christopher Rudolf Smith, LEAD ATTORNEY, Amanda C Antholt, James M. Baranyk, Smith, Johnson, & Antholt, LLC, Chicago, IL; Craig Benson Futterman, LEAD ATTORNEY, Mandel Legal Aid Clinic, Chicago, IL.
For City Of Chicago, Defendant: Penelope Moutoussamy George, LEAD ATTORNEY, City of Chicago, Department of Law, Chicago, IL; Terrence Michael Burns, LEAD ATTORNEY, Daniel Matthew Noland, Harry N. Arger, Molly E. Thompson, Paul A. Michalik, Dykema Gossett PLLC, Chicago, IL.
For Keith Herrera, Chicago Police Officer, Star #17289, Defendant: Eileen Ellen Rosen, LEAD ATTORNEY, John Joseph Rock, Silvia Mercado Masters, Stacy Ann Benjamin, Rock Fusco & Connelly, LLC, Chicago, IL.
For M Hopkins, Chicago Police Officer, Star #5545 Defendant: Geri Lynn Yanow, LEAD ATTORNEY, City of Chicago, Department of Law, Individual Defense Litigation, Chicago, IL; Jonathan Clark Green, LEAD ATTORNEY, Chicago Corporation Counsel, Chicago, IL; Edith K. D. Holland, Joseph Vincent Roddy, Law Offices of Joseph V. Roddy, Chicago, IL; Thomas Jon Aumann, City of Chicago, Chicago, IL.
For Paul Zogg, Chicago Police Officer, Star #9345, Defendant: Geri Lynn Yanow, LEAD ATTORNEY, City of Chicago, Department of Law, Individual Defense Litigation, Chicago, IL; Jonathan Clark Green, LEAD ATTORNEY, Chicago Corporation Counsel, Chicago, IL; Colin B White, City of Chicago, Federal Civil Rights Litigation, Chicago, IL; Nicholas Easton Siefert, City Of Chicago Department Of Law, Chicago, IL; Thomas Jon Aumann, City of Chicago, Chicago, IL.
For Officer Markiewicz, Chicago Police Officer, Star #17092, Defendant: Thomas Jon Aumann, City of Chicago, Chicago, IL; Thomas Steven Radja, Jr., Collins & Radja, Hoffman Estates, IL.
For CBS Broadcasting Inc., Respondent: Brian Alan Sher, LEAD ATTORNEY, Bryan Cave, Chicago, IL.
For John Blake, Eric Olson, Joseph Keeter, Matthew Riley, Timothy McDermott, Timothy Parker, William Morales, Estate of John Hurley, Guadalupe Salinas, John Burzinski, Kevin McDonald, Bret Rice, Carl Suchocki, Todd Jaros, Brian Pratscher, John Dahlberg, Jennifer O'Shaughnessy, Timothy McKeon, Kevin Prendkowski, James Foley, Lawrence Winters, Estanisla Partida, Thomas Sherry, Joel Gonzalez, Keith Fuelling, Intervenor Defendants: Geri Lynn Yanow, LEAD ATTORNEY, City of Chicago, Department of Law, Individual Defense Litigation, Chicago, IL.
For Fraternal Order of Police Chicago Lodge No. 7 and its members, Intervenor Defendant: Joseph Vincent Roddy, LEAD ATTORNEY, Edith K. D. Holland, Law Offices of Joseph V. Roddy, Chicago, IL.
For Jerome Finnigan, Intervenor: Eric S. Palles, LEAD ATTORNEY, Ravitz & Palles, Chicago, IL.
MEMORANDUM OPINION AND ORDER
Milton I. Shadur, Senior United States District Judge.
This action has been brought by Noel Padilla (" Noel" ), Socorro Padilla (" Socorro" ), Lourdes Padilla (" Lourdes" ), Irene Santiago (" Santiago" ) and Erling Johnson (" Johnson" ) (collectively " Plaintiffs" ) against five individual officers of the Chicago Police Department--Keith Herrera, Steve Del Bosque, Margaret Hopkins, Paul Zogg and Donovan Markiewicz (each referred to here by his or her last name and all collectively referred to as " Defendant Officers" )--as well as against the City of Chicago.  Plaintiffs assert that Defendant Officers are liable under 42 U.S.C. § 1983 (" Section 1983" ) for claimed constitutional violations: (1) the false arrest of Noel, (2) the false imprisonment of Noel, (3) the violation of Noel's due process rights, (4) the unlawful search of Johnson's and Santiago's home and (5) the unlawful search of Socorro's and Lourdes' home. Noel has also brought a state-law claim of malicious prosecution against Defendant Officers, and all Plaintiffs have asserted a state-law claim of intentional infliction of emotional distress. 
All parties except Herrera have filed cross-motions for summary judgment under Fed.R.Civ.P. (" Rule" ) 56. Plaintiffs have moved for partial summary judgment on Noel's claims for false arrest, violation of due process rights and malicious prosecution and on Socorro's and Lourdes' unlawful search claim. Zogg, Hopkins, Markiewicz and Del Bosque (collectively referred to for this purpose as " Unnamed Officers" ) have moved for summary judgment on Noel's false imprisonment claim, both unlawful search claims and Plaintiffs' collective intentional infliction of emotional distress claim. Unnamed Officers also claim immunity from all of Plaintiffs' claims under the doctrine of qualified immunity. This Court turns now to those motions.
Standard of Review
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But a nonmovant must produce more than " a mere scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and " must come forward with specific facts demonstrating that there is a genuine issue for trial" (id.). Evidence submitted for summary judgment purposes " need not be admissible in form (for example, affidavits are not normally admissible at trial), but it must be admissible in content" (Hardrick v. City of Bolingbrook, 522 F.3d 758, 761 (7th Cir. 2008)). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
What follows is a summary of the facts, viewed of course in the light most favorable to the nonmovants--a requirement applied within any limitations created by the extent of their compliance (or noncompliance) with the strictures of this District Court's LR 56.1, adopted to implement Rule 56.  One more complexity is added where, as here, cross-motions for summary judgment are involved. Those same principles require the adoption of a dual perspective that this Court has sometimes referred to as Janus-like: As to each motion the nonmovant's version of any disputed facts must be credited.
On the morning of October 15, 2005 Noel was visiting his friend Raymond Alvarado (" Alvarado" ) at Alvarado's home (P. St. ¶ 25). Around 9 a.m. the two smoked a cigar containing cannabis on Alvarado's front porch (Z. St. ¶ 17), and at some point between 9 a.m. and 10 a.m. Noel left Alvarado's house to make a phone call at a nearby bar (Vicky's) regarding an apartment Noel was hoping to rent (P. Resp. ¶ 18). After placing the call Noel walked back to Alvarado's house, carrying only his wallet with a state ID and,
depending on which party you ask, either $1,240 (Z. St. ¶ 59) or over $2,000 (P. St. ¶ 28). Either way the money was to be used as a deposit for the apartment he was interested in renting (P. St. ¶ 28).
As Noel was approaching Alvarado's house, two police cars approached him, one a marked squad car and the other a gold-tan unmarked vehicle (Z. St. ¶ 19). Three officers occupied the unmarked vehicle (Z. St. ¶ 20), and the marked car was occupied by two (Z. St. ¶ 27). Police records reflect that on the day of Noel's arrest Herrera, Del Bosque and Markiewicz were working together in one car and Zogg and Hopkins were working together in another (P. St. Ex. 1). As Noel walked up to Alvarado's house, one of the three officers occupying the gold-tan vehicle--an officer Noel describes as having appeared to be Asian--called out " hey you" and " come here" (P. St. ¶ 32). Noel was approached by the officer and asked if he could show his identification (id.). Noel remained on Alvarado's porch but reached to give the officer his wallet, at which point the officer grabbed Noel's wrist, pulled him down the stairs and placed him in handcuffs (P. St. ¶ 33). Noel was then placed in the unmarked police car (Z. St. ¶ 26). Noel describes two of the other officers that were on the scene as partners--one a female and the other a white male (P. St. ¶ ¶ 7, 37). He describes the remaining two officers as a Hispanic officer, known to Noel as Officer Herrera, and an older white officer, approximately 40 years of age (P. St. ¶ 6).
After securing Noel in one of the police cars, Herrera, the older officer and the female officer's partner approached Alvarado's front door and knocked (P. St. ¶ 37). When Alvarado answered he was handcuffed by the officers, and they proceeded to search his home (P. St. ¶ ¶ 37-38). When Vanessa Moriera--another occupant of Alvarado's house--returned home, the female officer on the scene stopped her, questioned her and searched her on the porch (P. St. ¶ 39). Alvarado was eventually placed into the marked squad car (id. ¶ 41). In the meantime Noel asked an unspecified officer whether the police would let him go, and he was told that if a background check cleared he would be released (id. ¶ 42).
Once the search of Alvarado's home was complete, Noel and Alvarado were driven to an alley by their arresting officers (id. ¶ ¶ 43, 45). While handcuffed in the police car, Noel was interrogated by the three officers riding with him (id. ¶ 47). He was told that if he did not " tell [them] something," " give [them] something" or indicate the source of drugs that were allegedly found by the police, then he was " going to go for a long time" (H. Resp. ¶ 48).
After questioning Noel in the alley, the officers decided to drive to 4305 North Francisco Avenue--the address where Noel lived with his girlfriend Irene Santiago (" Santiago" ), their infant son Julian and Santiago's grandfather Erling Johnson (" Johnson" )(Z. St. ¶ 30). On the way Herrera told Noel that if the police did not find evidence of wrongdoing at that address Noel would be released (P. St. ¶ 51). Once the police arrived at the Francisco residence, Herrera and the officer described as appearing Asian left the unmarked police car while the older officer stayed with Noel (P. St. ¶ 55). They approached the Francisco residence, and the officers knocked on the door (Z. Resp. ¶ 56; H. Resp. ¶ 56). Johnson answered, and when the officers asked Johnson if they could enter his residence, he said yes (P. Resp. ¶ 33).
Despite Johnson's consent the officers did not enter at that point (P. Resp. ¶ 33). Instead Johnson called for Santiago, and Santiago came to the door to speak with the officers (P. Resp. ¶ 34). Santiago was asked whether Noel lived with her (she
said yes) (P. Resp. ¶ 36), and she was told that if she could show the officers some of Noel's belongings he would be released (Z. Resp. ¶ 55; H. Resp. ¶ 55). As a third officer approached the door, the first two officers entered the Francisco residence (P. Resp. ¶ 37). Herrera conducted a search of the residence while the other officer spoke with Johnson in the kitchen (Z. St. ¶ ¶ 35, 38-41). When Herrera asked Santiago where Noel slept, she pointed to the bedroom (P. Resp. ¶ 40). Herrera then entered the bedroom and began to search (Z. Reply ¶ 40). As he was about to turn on the light Santiago told him that her son was sleeping in the crib, at which point Herrera left the bedroom (id.). Shortly thereafter the officers left (Z. St. ¶ 41). At no point did Johnson or Santiago tell the officers to leave (Z. St. ¶ 42).
Defendant Officers next visited the house located at the address on Noel's identification card, where Noel's sister (Lourdes) and mother (Socorro) lived (P. St. ¶ 59). When the officers arrived at the West 35th Street home--Noel and Alvarado still in tow--three male officers approached the residence. Noel describes the three officers who entered the apartment building as Herrera, the Asian-appearing officer and the partner of the female officer (P. St. ¶ 62), while Socorro describes the officers as three white males (P. Resp. ¶ 47). Upon hearing the three officers knock, Socorro answered the door. She was asked whether Noel lived with her and whether his clothes were there, and she answered in the negative (Z. Reply ¶ 45). One of the officers then told Socorro that they were going to look for Noel's clothing (P. Resp. ¶ 46), and they entered the residence without a warrant (H. Resp. ¶ 63; Z Resp. ¶ 63). Socorro did not tell the officers that they could enter (P. St. ¶ 63), nor did she tell them they could not enter (P. Resp. ¶ 48).
Once inside the Padillas' residence the officers began searching the Padillas' living room, hallway closet and kitchen (P. St. ¶ 64). As they began searching, Noel's sister Lourdes came out of the bathroom and repeatedly asked the officers why they were there and what they were looking for (P. St. ¶ 65). There is debate as to whether Lourdes asked the officers to stop as they continued their search of the residence (P. St. ¶ 65; Z. St. ¶ 52; H. Resp. ¶ 65), but the parties agree that Lourdes asked the officers to stop their search before they reached the bedroom, and the officers complied with that request (P. Resp. ¶ 53).
From the Padillas' West 35th residence the officers took Noel and Alvarado to a police station, where they were processed and charged--Noel with delivering cocaine and Alvarado with possessing cocaine (P. St. Exs. 8, 10). Herrera and Zogg inventoried $1,240 from Noel (H. Resp. ¶ 73; Z. Resp. ¶ 73), but Noel claims that the police actually took around $2,000 from him (P. St. ¶ 72).  Herrera, Del Bosque and Zogg each filled out police reports stating that Noel delivered cocaine (P. St.¶ 76). Herrera eventually signed a criminal complaint against Noel, which initiated criminal proceedings (H. Resp. ¶ 79). Noel's bail was set at $150,000, and because he could not afford that bail he remained in jail from October 15, 2005 through July 19, 2006 (P. St. ¶ ¶ 80-81).
Beginning in 2005--the same year in which Noel was arrested--Anna Demacopoulos (" Demacopoulos," now a Cook County Circuit Court Judge but then a
Cook County prosecutor) served as the supervisor of the Special Prosecutions unit in the Narcotics Bureau of the Cook County State's Attorney's Office (P. St. ¶ 86). In that role Demacopoulos helped bring criminal charges for official misconduct against certain Chicago Police officers in the Special Operations Section (" SOS" ) (Z. Resp. ¶ 87; H. Resp. ¶ 87)--the unit to which each defendant belonged at the time of Noel's arrest (P. St. ¶ ¶ 6-7). Demacopoulos also had the authority to dismiss or nolle prosequi narcotics cases in which officers under investigation were set to testify (P. St. ¶ 89). As it turns out, Noel's case fell into that category (P. St. ¶ ¶ 93, 109).
Noel's criminal trial was supposed to take place on July 17, 2006 (Z. Resp. ¶ 91; H. Resp. ¶ 91). But before the trial began Demacopoulos approached Noel's attorney and explained that the officers set to testify against Noel were under investigation, that she did not want them to testify and that she would not object to Noel being released on his own recognizance (P. St. ¶ ¶ 93-98). Demacopoulos explained the situation to Noel's judge, and Noel was in fact released (P. St. ¶ 99). Several officers, including those that were going to testify against Noel, were eventually indicted for official misconduct (P. St. ¶ ¶ 100-102). Demacopoulos believed Del Bosque and Herrera to be the only two witnesses to Noel's alleged crime, and because they were both under investigation or indictment and thus could not testify, the State's Attorney's Office moved to have Noel's case dismissed through nolle prosequi order (P. St. ¶ ¶ 105-10). That motion was granted, and Noel's case was dismissed on September 15, 2006 (P. St. ¶ 110).
Noel claims that he experienced panic attacks and constant rushes while in jail (P. St. ¶ 113). He also reports that he had feelings of anxiety, depression, helplessness, frustration, impatience and sadness as a result of his incarceration (P. St. ¶ ¶ 113-14). He wrote more than one letter to his attorney expressing his dismay, explaining that he was " suffer[ing] mentally" (P. St. ¶ 116). Noel also claims to have suffered panic attacks even after he was released from jail (P. St. ¶ 117), and he says that he felt the effects of his emotional trauma for several years (P. St. ¶ 119). Defendant Officers, however, point out that Noel ...