United States District Court, N.D. Illinois, Eastern Division
KENNETH L. CROWELL AND BERNICE BRANCH, Plaintiffs,
THE CITY OF CHICAGO, DONALD BRANCH, AND OFFICER ANTON WHITE, Defendants.
MEMORANDUM OPINION AND ORDER
THOMAS M. DURKIN, District Judge.
Kenneth Crowell and Bernice Branch allege pursuant to 28 U.S.C. § 1983 that Chicago Police Officer Anton White and former Chicago Police Officer Donald Branch assaulted them in violation of the Fourth Amendment. See R. 19. Plaintiffs also allege that the City of Chicago negligently retained Donald Branch, despite his history of domestic violence, in violation of state law. See id. The City and Officer White (joined by Officer Branch by oral motion on May 14, 2014) have moved to dismiss the negligent retention claim pursuant to Federal Rule of Civil Procedure 12(b)(6), R. 36, arguing that the state court already dismissed Plaintiffs' negligent retention claim prior to removal of the case to federal court, and alternatively that the City is immune to such a claim under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/4-102. Id .; see also R. 8. For the following reasons, the Defendants' motion is granted.
For purposes of this motion pursuant to Federal Rule of Civil Procedure 12(b)(6), the following facts are taken from Plaintiffs' complaint and are taken as true, with reasonable inferences construed in Plaintiffs' favor. See Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013).
On April 1, 2008, Officers Branch and White were patrolling the 7th police district wearing plain clothes in an unmarked Chicago police car. R. 19 ¶ 11. They left the 7th police district to travel to the vicinity Bernice Branch's home. Id. ¶ 14. Officer Branch was married to Bernice Branch, but they were living separately. Id. ¶ 13. Officers Branch and White encountered the Branch's oldest daughter while in the vicinity of Bernice Branch's house. Id. ¶ 15. The Officers dropped her off at school and then continued on to Bernice Branch's home. Id. ¶ 16.
When Officers Branch and White arrived at Bernice Branch's home they saw Bernice Branch and Crowell exiting the home. Id. ¶ 18. Officer Branch got out of the police car and approached Crowell and Bernice Branch with his hand near his gun. Id. While approaching Crowell and Bernice Branch, Officer Branch had his police badge displayed, and he wore his police bulletproof vest. Id. Officer Branch verbally threatened Crowell while keeping his hand on his gun. Id. ¶ 20. Officer Branch then grabbed Bernice Branch, choked her, slammed her against a parked car, and hit her in the head and face. Id. Officer Branch then removed his gun from its holster and aimed it at Crowell. Id. ¶ 21. Crowell raised his hands and pleaded with Officer Branch to stop. Id. Crowell ran and Officer Branch pursued him with his gun still drawn. Id. ¶¶ 24-25. After Officer Branch left to pursue Crowell, Officer White confronted Bernice Branch and verbally abused her for having a man at her house. Id. ¶ 26. Officer White then got in the police car and pursued Crowell for several blocks. Id. ¶ 27. At some point during the pursuit, Crowell was able to hide and call 911. Id. ¶ 28.
After losing track of Crowell, Officer Branch returned to the front of Bernice Branch's house and smashed in the windows of Crowell's car with a shovel. Id. ¶ 29. Bernice Branch then called 911 and Officers Branch and White waited until their fellow officers arrived. Id. ¶¶ 30-31. As a result of this incident, Officer Branch was charged with and pled guilty to the crime of official misconduct. Id. ¶ 34.
Prior to the incident at issue in this case, Officer Branch had a history of domestic violence incidents of which the City was aware. Id. ¶ 35. On April 26, 2004, Chicago Police officers responded to an emergency call by Bernice Branch regarding Officer Branch's aggressive and violent behavior. Id. Bernice Branch then obtained a court order for protection against the Officer Branch. Id. On May 6, 2006 Officer Branch pinned Bernice Branch to the ground and threatened her with his gun at her head. Id. Sergeant Ronald Forgue, one of Officer Branch's supervisors, and other police officers responded to this incident. Id. Sergeant Forgue also responded to another domestic incident at the Branch home prior to April 1, 2008. Id.
Plaintiffs originally filed a complaint in the Illinois Circuit Court on March 31, 2009. R. 1-2 at 3-14. Plaintiffs subsequently amended that complaint, and Count I of the amended complaint was a claim against the City for "negligent hiring and retention." Id. at 33. In the amended complaint, Plaintiffs alleged the following, in relevant part:
[The] City of Chicago, by and through its authorized agents committed one or more of the following negligent acts and/or omissions:
a. Hired an officer who had a history, pattern and practice of domestic abuse and irrational, unstable and antisocial behavior unsuitable for police duties;
b. Retained an officer who had a history, pattern and practice of domestic abuse and irrational, unstable and antisocial behavior unsuitable for police duties;
c. Authorized and permitted an officer to remain active on the police force and to interact with citizens, including but not limited to the Plaintiff, who had a history, pattern and practice of domestic abuse and irrational, unstable and demonstrated antisocial behavior unsuitable for police duties;
d. Failed to provide suitable anger management counseling and related services despite knowledge that officer Donald Branch ...