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Posey v. Miro

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

August 5, 2014

JENNIFER POSEY, AS NEXT FRIEND OF K.M., Plaintiff,
v.
OFFICER LUIGI MIRO, UNKNOWN OFFICER, and THE CITY OF CHICAGO, Defendants.

MEMORANDUM OPINION AND ORDER

MANISH S. SHAH, District Judge.

Chicago Police Officer Luigi Miro was on duty when his police truck collided with K.M., a minor who was riding his bike.[1] K.M.'s mother, Jennifer Posey, sued Miro, asserting that he violated K.M.'s constitutional rights to be free from excessive force, unreasonable seizure, and conscience-shocking governmental action. Posey also brought related state law claims against Miro, and sued the City of Chicago as an indemnifier. The defendants moved for summary judgment on all claims. For the reasons discussed below, I grant the defendants' motion in part, and deny it in part.

I. The Facts[2]

On August 10, 2011, Miro was assigned to patrol beat 22 in the 15th district, in a Chicago Police Department truck. DSOF ¶ 8. As he patrolled, he drove north on Central Avenue and then turned right, proceeding east either on Gladys Avenue or through an alley between Gladys and Jackson Boulevard. DSOF ¶¶ 18, 20. He turned right again and drove south along Lotus Avenue. DSOF ¶ 21. Because Lotus is a one-way street going north, DSOF ¶ 22, Miro drove "the wrong way" down Lotus. Still, Miro did not turn on his emergency lights or siren. DSOF ¶ 24.

As Miro approached Van Buren Street, it was light outside, he could see people sitting on the steps of a church at Lotus and Van Buren, and he could see clearly along Lotus all the way down to Congress Parkway, the next street south of Van Buren. DSOF ¶¶ 13, 26, 28. At Van Buren, rather than stop, Miro "revved" his engine and sped up. PSOAF ¶¶ 18-20, 26. Miro testified that he did not see K.M. (DSOF ¶ 29), but it was a clear day and Miro had an unobstructed view (DSOF ¶¶ 13, 26, 28), Miro was looking straight ahead (DSOF ¶ 34), and eyewitnesses offer first-hand testimony about Miro's and K.M.'s positions and directions of travel, prior to and at the time of the collision ( e.g., Dkt. 86-1 at 46-48, 52, 60-61, 65). That's enough to raise a genuine dispute about what Miro saw. While Miro's testimony is clear-he says he did not see K.M.-a reasonable jury could choose not to believe him. Miro did not use any evasive measure (such as applying the brakes). PSOAF ¶ 27. As Miro crossed the street, he collided with K.M. DSOF ¶¶ 30-31.

Just before the collision, K.M. was riding his bike on Van Buren toward Lotus. DSOF ¶ 31. He was in the street, waiting for a car to pass, when a friend called his name. Id. K.M.-who had not seen Officer Miro-was turning his bike around to respond to his friend when he was hit by Miro. DSOF ¶¶ 31-32. His injuries necessitated a cast, crutches, and a leg brace. DSOF ¶ 48.[3]

II. Analysis

A. Count I ("Excessive Force Under 42 U.S.C. § 1983") and Count II ("Unreasonable Seizure Under 42 U.S.C. § 1983")

A claim of "excessive force" is a claim that seeks to impose liability for physically abusive governmental conduct. Kingsley v. Hendrickson, 744 F.3d 443, 448 (7th Cir. 2014). The right to be free from such abuses derives from various provisions of the Bill of Rights. Id. In a particular case, the claim is evaluated by reference to the specific constitutional standard that governs the right, rather than under some generalized "excessive force" standard. Id. at 449. Because Posey's "excessive force" claim derives from the Fourth Amendment's prohibition against unreasonable seizures, Counts I and II both require proof of a seizure, and in the context of this case are essentially duplicative.[4]

Miro argues that he is entitled to summary judgment because he accidentally hit K.M., while a "seizure" under the Fourth Amendment requires intent. Dkt. 65 at 5-6. Miro is right on the law. County of Sacramento v. Lewis, 523 U.S. 833, 843-44 (1998). But at this stage I must resolve genuine disputes of fact, and make all reasonable inferences from those facts, in Posey's favor. Through that lens, as Miro approached the Lotus-Van Buren intersection, he: did not stop, revved his engine, and sped up. PSOAF ¶¶ 18-20, 26. A jury could reasonably conclude that before impact, Miro saw K.M. but did nothing to avoid hitting him. PSOAF ¶ 21; DSOF ¶¶ 30-31. If those are the facts, a reasonable inference is that Miro terminated K.M.'s freedom of movement "through means intentionally applied, " Brower v. County of Inyo, 489 U.S. 593, 597 (1989), and therefore the collision was a seizure under the Fourth Amendment.

Miro also argues that he is entitled to summary judgment on the basis of qualified immunity. The doctrine of qualified immunity is discussed more fully in Section II.B below. For now, Miro's argument fails because it assumes that he did not hit K.M. intentionally (Dkt. 65 at 9-10)-a finding I cannot make at this stage. Miro did not argue that he is protected by qualified immunity even if he intentionally hit K.M. Such an argument would be meritless anyhow. See Brower, 489 U.S. 593.

The motion for summary judgment on Counts I and II is therefore denied.

B. Count III ("Due Process Under 42 U.S.C. § 1983")

In Count III, Posey asserts that Miro violated K.M.'s "substantive due process" rights. Substantive due process rights are violated when the government abuses its power so egregiously that it "shocks the conscience." Lewis, 523 U.S. at 845-47. If Miro hit K.M. intentionally, he is entitled to summary judgment on Count III because Posey has a Fourth Amendment claim, not a substantive due process one. Id. at 843. Miro argues that there can be no substantive due process violation for unintentional conduct either (Dkt. 65 at 6-8), but as discussed below, that is not quite the current state of law. In ...


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