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Flores v. Lackage

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

March 31, 2013

OSCAR FLORES, Plaintiff,

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[Copyrighted Material Omitted]

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For Oscar Flores, Plaintiff: Mitchell Bruce, LEAD ATTORNEY, Scott Nelson Gilbert, Katten & Temple LLP, Chicago, IL.

For Ronald Lackage, David Fleming, police officer, Defendants: Richard Thomas Sikes, Jr., LEAD ATTORNEY, Julie P. Sieracki, Daley Mohan Groble, P.C., Chicago, IL; Andrew J Foreman, Butler Rubin Saltarelli & Boyd LLP, Chicago, IL.

For City of Chicago, a municipal corporation, Defendant: Richard Thomas Sikes, Jr., LEAD ATTORNEY, Julie P. Sieracki, Daley Mohan Groble, P.C., Chicago, IL; Andrew J Foreman, Butler Rubin Saltarelli & Boyd LLP, Chicago, IL; Geri Lynn Yanow, City of Chicago, Department of Law, Individual Defense Litigation, Chicago, IL.

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Honorable Edmond E. Chang, United States District Judge.

December 2008 was a colder-than-normal month in Chicago. [1] December 22 was frigid: the high was 7° F, the low was -4° F, and 4 inches of snow sat on the ground. So conditions were ripe for a dispute between neighbors over calling " dibs" on a parking spot. Some Chicagoans believe that city tradition (or perhaps a Lockean view of the right to the fruits of one's labor) allows them to place a chair, or some other placeholder, in an on-street parking spot that they've freshly shoveled, thereby calling " dibs" and saving the space for themselves. John Kass, Snowstorm's Charm Can't Stand up to Law of Street, Chicago Tribune at 3 (Jan. 5, 1999); John Kass, A Winter Etiquette Lesson: No Dibs Until It Gets Deep, Chicago Tribune at 2 (Dec. 20, 2012). Others refuse to take this sitting down. See

Based on facts that snowballed from a " dibs" dispute, Plaintiff Oscar Flores brings a lawsuit against Chicago Police Officers Ronald Lackage and David Fleming, [2] and against the City of Chicago, alleging civil rights violations pursuant to 42 U.S.C. § 1983. [3] In his complaint, Flores alleges that Lackage and Fleming illegally entered his apartment to arrest him on December 22, 2008, using excessive force against him during the arrest and afterwards. R. 1, Compl. [4] Flores also brings a claim against the City of Chicago for depriving him of adequate accommodations for sleep in his overnight lockup cell. Id. Flores has moved for partial summary judgment on the warrantless entry and excessive force claims [R. 64], and Chicago has moved for partial summary judgment on the unconstitutional conditions of detention claim [R. 68]. For the reasons set forth below, Flores's motion is granted as to the warrantless entry claim but denied as to the excessive force claim, and Chicago's motion is granted.

I. Background

In deciding these summary judgment motions, the Court views the evidence in the light most favorable to the non-movant, and in this case, that lens will flip back-and-forth because both sides have moved for summary judgment on various claims. Oscar Flores lived in the ground floor apartment at 1827 North Kedvale Avenue in Chicago. R. 65 ¶ 1. On December 22, 2008, Flores shoveled snow to clear a parking space on the street in front of his home. Id. ¶ 7. That evening, Flores's wife put a chair in that space (thereby calling " dibs" on it) and then drove her car away. Id. ¶ 8. Flores's neighbor, Glenda Burgos, moved the chair and parked in the spot that Flores had shoveled. Id. ¶ 9. This started an argument. Flores came out of his apartment and asked Burgos why she had moved the chair and parked in the spot he had cleared. Id. ¶ 10. At

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her deposition, Burgos testified that Flores " came up to [her] very aggressive[ly]," " putting the chest out and the arm . . . up," and threatened to " fuck up [her] car." R. 75-1, Defs.' Exh. A, Burgos Dep. 14:17-18, 17:2-3, 86:20-21. Because she was afraid for the safety of her car, she called 911. Id. 46:4-9.

Officers Lackage and Fleming responded to the call and arrived at the scene between 8:00 and 9:00 p.m. R. 69 ¶ 6. When they arrived, Burgos pointed out where Flores lived. R. 65 ¶ 14. After Burgos recounted the incident to the officers, Fleming suggested that they try to take care of this civilly without incident. R. 69-1, Defs.' Exh. A, Fleming Dep. 15:20-24. After she agreed, Fleming and Lackage knocked on Flores's outer door. Fleming Dep. 17:5-7; R. 69-2, Defs.' Exh. B, Lackage Dep. 16:21-22. Flores answered the knock by opening the door, but he stayed entirely on the inside of the doorway. Fleming Dep. 18:12-15, 19:5-7; Lackage Dep. 16:23-24.

The parties dispute what happened next. According to the officers, Lackage explained to Flores that Flores could not leave objects in the street to hold a parking spot. Fleming Dep. 19:13-16; Lackage Dep. 17:3-6. Flores responded, " Fuck you." Fleming Dep. 19:20; Lackage Dep. 17:6. Burgos heard something similar from where she stood (which was around 25-30 feet away): Flores shouted at the police aggressively and swore at them. Fleming Dep. 17:19-18:1; Burgos Dep. 26:1-27:20. At that point, Fleming went back to Burgos and asked her if she would like to pursue criminal charges; she said yes. Fleming Dep. 20:10-15; Burgos Dep. 28:4-14. Fleming returned to where Lackage was waiting with Flores, announced that Flores was under arrest, took handcuffs out, and reached through the open outer doorway to grab one of Flores's hands. Fleming Dep. 21:11-20, 22:13-17; Lackage Dep. 19:24-20:4. Flores swung his arms away to avoid the handcuffs and ran, through an inner door, back into his apartment. Fleming Dep. 22:18-24, 25:7-10; Lackage Dep. 21:3-7. Lackage tried to stop him by grabbing his right arm and his shirt, but Flores ducked down and slid out of his shirt. Lackage Dep. 20:6-19. The officers then pursued Flores into his living room. Fleming Dep. 26:1-13; Lackage Dep. 21:8-10.

In the living room, (this is all still according to the officers) Fleming and Lackage attempted an " emergency takedown" of Flores by grabbing his arms to take him to the ground. Fleming Dep. 26:15-22, Lackage Dep. 21:11-16, 23:13-15. Flores began throwing elbows, knocking Fleming to the floor and injuring Fleming's wrist. Fleming Dep. 27:5-20; Lackage Dep. 23:14-22. Seeing this, Lackage seized Flores from behind and took him down onto the living room couch, with Flores face down against the cushion and Lackage on top. Fleming Dep. 28:15-29:14; Lackage Dep. 24:5-9. After Flores continued to struggle, Lackage took out his pepper spray and warned Flores to stop resisting. Fleming Dep. 31:11-15; Lackage Dep. 24:20-23, 25:9-19. Lackage then sprayed Flores (and inadvertently also sprayed himself). Fleming Dep. 32:6-9; Lackage Dep. 25:20-22. At that point, Fleming arrived at the couch and tried to control Flores's arms with wrist locks and arm bars. Fleming Dep. 32:16-18. Meanwhile, to stop Flores from elbowing, Lackage began striking Flores with " open hand stuns" on his back or backside. Lackage Dep. 26:8-10; Fleming Dep. 33:21-34:4. Flores finally stopped struggling, and the officers scooped his arms out and handcuffed him. Fleming Dep. 33:8-17; Lackage Dep. 26:12-19.

According to Fleming and Lackage, Flores continued to make things difficult,

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even after being handcuffed. As the officers left the apartment with Flores, Flores turned his feet outward to resist being taken out, so Fleming and Lackage had to pick Flores up a little and carry him through the door. Fleming Dep. 39:13-19, Lackage Dep. 29:2-7, 19-23. On the way to the police car, Flores tried to pull away, and Flores and Fleming slipped on the icy sidewalk, falling into the snow--Flores face down, with Fleming on top. Fleming Dep. 40:8-12, 18-22; Lackage Dep. 31:4-9. The officers then put Flores into their car and drove him to the 25th District police station. Fleming Dep. 43:5-6; Lackage Dep. 34:4-10.

Flores tells a different story. Very different. According to Flores, when he answered the knock on the outer door, the officers were the ones who were aggressive; they told him it was illegal to place a chair in the parking space and called him a " motherfucker." R. 69-3, Defs.' Exh. C, Flores Dep. 41:7-24. Then one officer, without ever telling him that he was under arrest, pulled out handcuffs and grabbed Flores to pull him outside, ripping his shirt. Id. 42:1-7, 43:5-7, 9-16. Flores pulled away and ran farther back into his apartment, but the police chased him into his living room, beating him and knocking him down onto the couch. Id. 45:5-14, 46:5-7, 11-13. Flores denies throwing elbows; he asserts he was simply covering his face to protect himself from the beating. Id. 45:24-46:6. He also denies knocking one of the officers to the floor. Id. 47:16-18, 47:23-48:1. Instead, Flores says, the officers held him down on the couch and continued to beat him even after he was handcuffed. Id. 47:13-15, 48:7-10. And when Lackage and Fleming took him outside, they knocked him down to the snow and continued to hit him, not stopping until other police officers arrived and he was taken to the police station. Id. 49:14-15, 50:17-19, 55:20-22. Finally, Flores alleges that the officers sprayed him with pepper spray twice--once before they handcuffed him in his living room and once after knocking him onto the snow. Id. 49:16-50:3.

After Flores arrived at the 25th District station, he was placed in the station's lockup. R. 69 ¶ 7. In his lockup cell was a piece of concrete--Chicago labels the concrete a " bed," Flores calls it a " slab" --about two feet tall and four feet long. R. 72 ¶ ¶ 8-9. Flores spent about 30 minutes in his cell before he was taken to the upstairs area of the station. R. 69 ¶ 10. There, he spent about two hours meeting with detectives. Id. ¶ ¶ 13-14. After meeting with the detectives, Flores went back to the lockup, where he was fingerprinted, photographed, and allowed to make a phone call. Id. ¶ ¶ 15-16. He was then placed back into his lockup cell for the night. Id. ¶ 16.

Although it is undisputed that Flores did not sleep in his cell that night, the parties dispute whether Flores tried to sleep. All agree that Flores was not given a mattress or any other bedding such as a blanket, linens, foam pad, or pillow, but Chicago contends that he never asked for bedding or a mattress. R. 80 ¶ 7. Chicago also asserts that Flores testified in his deposition that he did not even try to sleep. See R. 80 ¶ 8; Flores Dep. 71:13-17. But Flores filed an affidavit after his deposition where he avers that he was " unable to sleep . . . [t]he concrete slab was uncomfortable because it was too short and the surface was too hard especially due to the injuries that I suffered during the arrest." R. 72-2, Pl.'s Exh. 1, 5/17/12 Flores Aff. ¶ 11. He also avers that he was extremely tired and in physical pain the next day " from the injuries inflicted during [his] arrest, spending the night on a rock hard surface and being unable to sleep." Id. ¶ 12. The next morning, Flores was taken to Cook County Jail, and then to an immigration

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detention facility in DuPage County. Flores Dep. 83:11-13, 86:8-16. He was finally released on December 31, 2008. Id. 87:1-4. Although Burgos signed a misdemeanor assault complaint against Flores, the assault charge was ultimately dismissed. [5] R. 65 ¶ ¶ 66-67.

Following this incident, Flores filed a seven-count complaint for constitutional violations (and state-law torts) allegedly committed by Defendants, including false arrest, use of excessive force, and deprivation of adequate accommodations for sleep. Compl. at 5-11. Flores has moved for partial summary judgment on Counts One and Two [R. 64], and Chicago has moved for partial summary judgment on Count Three [R. 68].

II. Standard of Review

Summary judgment must be granted " if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Rule 56 " mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Centr., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008).

III. Analysis

A. Warrantless Entry and Arrest

Flores first alleges that Officers Lackage and Fleming violated the Fourth Amendment by entering his home to arrest him without a warrant, consent, or exigent circumstances. R. 66, Pl.'s Br. at 1. In response, Lackage and Fleming construe Flores's claim as a claim for false arrest and contend that they had probable cause to arrest him. Additionally, Defendants argue that Flores did not have a reasonable expectation of privacy because he was outside his home when the arrest began. Finally, Defendants claim qualified immunity. R. 74, Defs.' Resp. at 1-2.

It is true that Count One in Flores's Complaint is a claim for false arrest rather than for warrantless entry. Compl. at 5. But a complaint need not plead specific legal theories; it need only plead facts that would provide the plaintiff with a right to recover, no matter the legal theory. Williams v. Seniff, 342 F.3d 774, 792 (7th Cir. 2003). And it is clear from Flores's brief that he moves for summary judgment on Count One based on a claim of warrantless entry. Pl.'s Br. at 2. So the failure of Count One to specifically plead " warrantless entry" does not prevent Flores from asserting it now.

Under the law governing the warrantless entries of police into homes, even if Lackage and Fleming had probable cause to arrest Flores, they still are not allowed to enter his home without an arrest warrant unless they had his consent or unless exigent circumstances supported the entry. Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001). The parties all agree that Lackage and Fleming did not have an arrest warrant. R. 75 ¶ 20. And although Defendants dispute that they needed Flores's consent to arrest him (instead, they believe Flores was outside his home when the arrest began), they concede that Flores did not consent to the entry. R. 75 ¶ ¶ 46-47. So the remaining

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questions are (1) whether, under the Fourth Amendment, Flores had a reasonable expectation of privacy in the area he was standing in when the arrest began, (2) whether Lackage and Fleming had exigent circumstances to enter Flores's home, and (3) whether Lackage and Fleming are entitled to qualified immunity.

1. Reasonable Expectation of Privacy

The Fourth Amendment protects a person's reasonable expectation of privacy in various settings, but chief among these is protection against the physical entry of the home. Payton v. New York, 445 U.S. 573, 585-86, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (citation omitted). Occupants inside their homes enjoy an especially heightened Fourth Amendment protection. Id. at 586 (" [S]earches and seizures inside a home without a warrant are presumptively unreasonable." ); see also id. at 590 (" In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house." ).

But even though entry into the home without a warrant " by even a fraction of an inch" is too much, " exactly where [the] outside ends and where the home begins is not a point immediately obvious." Sparing, 266 F.3d at 689 (quoting Kyllo v. United States, 533 U.S. 27, 37, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)) (internal quotation marks omitted). Officer Fleming testified that Flores was standing " inside the door" right before Fleming reached through the doorway threshold. Fleming Dep. 21:4-5, 22:13-17. He characterized the area where Flores was standing as a " little hallway" between the outer door (facing the street) and the inner door (leading to Flores's living room). Id. 24:2-4. Defendants therefore contend that the outer boundary of Flores's home was the inner door, not the outer door, meaning that Flores was supposedly standing outside his home when the arrest began. See R. 75 ¶ 21. For his part, Flores calls that area in between the outer door and the inner door a " small little room" about " six [feet] by three [feet]" in size, thus considering himself inside his apartment during the arrest. Flores Dep. 147:14-16, 150:9-10. As explained below, the Court must look past the parties' nomenclature because the Fourth Amendment is not strictly controlled by the common law of property, at least when it comes to doorway arrests. United ...

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