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Holmes v. City of Chicago

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

August 6, 2014

HUGO HOLMES, Plaintiff,

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[Copyrighted Material Omitted]

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For Hugo Holmes, Plaintiff: Peter A. Cantwell, LEAD ATTORNEY, John William Kalich, Cantwell & Cantwell, Chicago, IL.

For City of Chicago, a Municipal Corporation, Michelle D. Acosta, E.S. Herrera, Jr., J.D. Matich, Veronica A. Coffee, Defendants: Terrence Michael Burns, LEAD ATTORNEY, Daniel Matthew Noland, Derek B. Payette, Molly E. Thompson, Paul A. Michalik, Dykema Gossett PLLC, Chicago, IL.

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Robert M. Dow, Jr., United States District Judge.

Plaintiff Hugo Holmes sued the City of Chicago and Chicago Police Officers Michelle Acosta, Eugene Herrera, Jr., Jonathan Matich, Veronica Coffee, Marilyn Drish, and Patricia Ferraro for violations of state and federal law stemming from his arrest on April 25, 2008. On November 12, 2013, Officers Marilyn Drish and Patricia Ferraro were dismissed from this case pursuant to stipulation by the parties. The remaining Defendants have moved for summary judgment on all counts (Counts II and III) against Officers Herrera, Matich, and Coffee, but concede that factual issues exist with respect to certain of Plaintiff's claims against Officer Acosta (also Counts II and III).[1] For the reasons set forth below, the Court grants in part Defendants' motion for summary judgment [178] and also grants Plaintiff's motion for leave to file a sur-reply [208].

I. Factual Background[2]

On the morning of April 25, 2008, Plaintiff Hugo Holmes was arrested and charged with solicitation of a sex act. At the time of Plaintiff's arrest, Officers Michelle Acosta, Eugene Herrera, Jonathan Matich and Veronica Coffee were conducting

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a " prostitution solicitation sting," in which the officers make arrests of persons who are alleged to have solicited a sex act from a police officer who is impersonating a prostitute. Officer Acosta's role was to act as a " decoy" prostitute and signal in the event that a person solicited her for a sex act. Officer Acosta testified that she would have " flagged" Officer Herrera if a deal had been made, and Officer Herrera testified that Officer Acosta " would wave her hand, take her hat off, blow a kiss, whatever we determined that day we were going to do" to signal that she had probable cause to arrest an individual for solicitation. Officer Acosta testified that she did not wear a wire or have a radio on her person on the morning of April 25.[3] Officer Herrera's role was to watch for Officer Acosta's signal in the event a person solicited a sex act.[4] His role was also to protect Officer Acosta's safety. Although he does not recall where he stood during this incident, Officer Herrera typically would position himself so that he could see Officer Acosta while at the same time not be detected as a police officer by a person who might solicit a sex act from Officer Acosta. Officers Matich and Coffee were to park in their unmarked police car out of sight of a potential offender and wait for a radio transmission from Officer Herrera indicating that a person had solicited a sex act from Officer Acosta.

On April 25, 2008, at approximately 8:30 a.m., Plaintiff Hugo Holmes was driving his 2006 GMC pickup truck eastbound on 47th Street. Plaintiff was a Field Service Supervisor of the Chicago Department of Transportation's (CDOT's) Division of Infrastructure Management, for CDOT's Central District. In the course of performing his field monitoring and inspections, Plaintiff used his own vehicle and was reimbursed by CDOT for his mileage. On April 25, 2008, Plaintiff was working in the Central District, which included the intersection of 47th Street and Washtenaw Avenue. After passing the intersection of 47th and Washtenaw, Plaintiff drove around the block as follows: he took a left turn on Talman Avenue (the next block east from Washtenaw) and proceeded one block north to 46th Street, Plaintiff turned left and proceeded one block west on 46th Street to Washtenaw Avenue, and Plaintiff then took another left turn and proceeded one block southbound on Washtenaw Avenue until he came to a stop at approximately 4658 S. Washtenaw Avenue.

Plaintiff testified that a woman walked toward his pickup truck while he was stopped on Washtenaw and 47th Street and stated " $20 for a blowjob?" Plaintiff denies that he solicited a sex act and further testified that he ignored Officer Acosta's solicitation with disgust and a dismissive gesture, telling her " I'm working." Officer Acosta testified that Plaintiff offered her $20 in exchange for " head" and to " lick her titty." Plaintiff did not see Officer Acosta wave or gesture with her hand when he was stopped and he did not look back at her when he drove away. Officer Acosta testified that she signaled to Officer Herrera that Plaintiff had solicited her for a sex act. Officer Herrera then told Officers Matich and Coffee over the radio that Officer Acosta was solicited for a sex act by Plaintiff (although they did not know Plaintiff's name at the time).

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According to Defendant Officers, Herrera would have identified Plaintiff's vehicle.

Officers Matich and Coffee had backed their unmarked police car into an alley off of Washtenaw south of 47th Street. Plaintiff drove his pickup truck across 47th Street and southbound on Washtenaw. Officers Matich and Coffee pulled their unmarked police car out of the alley and stopped Plaintiff. Officers Matich and Coffee advised Plaintiff that he was under arrest, and Officer Matich put the handcuffs on Plaintiff and placed him into the back seat of the police car. Plaintiff was transported to the 9th District Police Station by Officers Marilyn Drish and Patricia Ferraro. Plaintiff was charged with solicitation of a sex act in violation of 720 ILCS 5/11-14.1(a), and his car was impounded pursuant to Chapter 8-8-060 of the Chicago Municipal Code. Plaintiff remained in police custody until he posted bond at approximately 4:00 p.m. on April 25, 2008.

Officer Acosta prepared and signed the vice case report. Officer Matich is listed as the attesting officer on the arrest report. Officer Acosta was identified as the " first arresting officer" on the arrest report and Officer Herrera was identified as the " second arresting officer." Officers Matich and Coffee are identified as " assisting arresting officers." Officer Matich relied upon Officer Acosta's statement as to the communication between her and Plaintiff to complete the substantive part of the narrative of the arrest report relative to the solicitation of a sex act. Subsequent to the arrest of Plaintiffs, Defendant Officers' supervisors instructed Defendant Officers to discontinue prostitute solicitation sting operations.

On September 29, 2008, the case of People v. Hugo Holmes, No. 08-1-222-705-01 was called in Branch 46 of the Circuit Court of Cook County, Municipal Department, 555 W. Harrison Street, Chicago, Illinois. The case was passed by the Court after a discussion on the record. The docket indicates the case was recalled and stricken with leave to ...

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