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Powell v. City of Berwyn

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

September 19, 2014

OTIS POWELL, Plaintiff,

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For Otis Powell, Plaintiff: Mary Johanna Grieb, LEAD ATTORNEY, April Dominique Preyar, Brendan Shiller, Shiller Preyar Law Offices, Chicago, IL.

For City of Berwyn, Defendant: K. Austin Zimmer, LEAD ATTORNEY, Eric T Stach, Veronica Bonilla-Lopez, Del Galdo Law Group, LLC, Berwyn, IL.

For Lopez, (Star #723) City of Berwyn Police Officer, Ramon Ortiz, Sergeant, Siciliani, (Star #709) City of Berwyn Police Officer, Tovar, (Star #213) City of Berwyn Police Officers, Defendants: Gregory Robert James, Jr., LEAD ATTORNEY, Devlin Joseph Schoop, Joseph Michael Gagliardo, Laner Muchin, Ltd., Chicago, IL.

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JOHN Z. LEE, United States District Judge.

Plaintiff Otis Powell has sued the City of Berwyn and Berwyn Police Officers Lopez, Siciliani, and Tovar and Sergeant Ortiz pursuant to 42 U.S.C. § 1983 for violating his constitutional rights under the Fourth and Fourteenth Amendment to the U.S. Constitution, as well as malicious prosecution and conspiracy pursuant to state law.[1] The City of Berwyn and Officers Lopez, Siciliani, Tovar, and Ortiz have moved for summary judgment. For the reasons provided herein, the Court grants in part and denies in part Defendants' motion.[2]

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Factual Background

The following facts are undisputed unless otherwise noted. On November 11, 2011, Plaintiff Otis Powell was employed by A& R Security as an armed security guard at an Aldi's grocery store. Defs.' LR 56.1(a)(3) Stmt. ¶ 3. Powell's shift started at 9:00 a.m. and ended at approximately 8:00 p.m. Id. Powell left Aldi's and drove his car to his cousin's home for a family party. Id. ¶ 4. Powell was later joined by his fiancé e, Ashley Crawford, who, that same day, was returning from an extended stay in Rockford, Illinois, and was going to begin living with Powell at an apartment located at 19th and Euclid, in Berwyn, Illinois. Id. Powell and Crawford left his cousin's home at approximately 2:00 a.m. Id. ¶ 5.

Crawford parked Powell's car on 19th Street, which required Powell and Crawford to cross the street in order to get to Powell's apartment building. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 2; Defs.' LR 56.1(a)(3) Stmt. ¶ 5. After parking, Powell removed a loaded gun in its holster from the trunk of his car. Id. ¶ 6. Powell walked with the holstered gun in his hand as he and Crawford walked down the street toward their building. Id. While driving near 19th and Euclid, Officers Lopez and Siciliani observed Powell walking with a holstered gun in his right hand, and Officer Siciliani reported what they had observed to the police dispatcher before confronting Powell. Id. Plaintiff and Defendants dispute the specifics of what happened next.

According to Plaintiff, he and Crawford were standing in front of his apartment building with his hand on the door, opening the door to the apartment building, when he first noticed Officers Siciliani and Lopez approaching in their police van, otherwise known as a squadrol. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 3. Plaintiff claims Officer Lopez yelled to him, " What the f*ck do you think you're doing?" Id. Plaintiff admits he was holding a holstered gun when he was approached by Officers Lopez and Siciliani and that he heard one of the officers order him to drop his weapon. Id. ¶ ¶ 4-5. Plaintiff claims he handed his gun over to Crawford who then placed the gun on the ground. Id. ¶ 5. Powell then handed his weapons credentials to the Officers, including his Firearm Owner Identification (" FOID" ), Firearm Control card (referred to as a " tan" card), Permanent Employee Registration (" PERC" ), and A& R employment cards. Id. Officer Lopez had his gun pointed at Powell until Officer Tovar arrived on the scene about five to seven minutes later. Id. ¶ 7.

According to Powell, immediately upon his arrival, Officer Tovar rushed toward Powell, and Powell felt a shove and grab from the side with multiple hands attempting to take him down. Id.; Defs.' LR 56.1(a)(3) Stmt., Ex. K, Pl.'s Dep. at 167:17-168:19, 169:12-171:13. Powell heard one of the Officers say " back up," and then Officer Tovar began pepper-spraying Powell in the face and neck. Id. ¶ 8; Defs.' LR 56.1(a)(3) Stmt., Ex. K, Pl.'s Dep. at 179:18-20, 186:21-24, 194:12-20, 195:10-16. Defendant Officers then commanded Plaintiff to the ground; however, before Plaintiff was able to get himself to the ground, an officer kneed Plaintiff in the back, forcing him to the ground, flat on his stomach. Id. ¶ 9; Defs.' LR 56.1(a)(3) Stmt., Ex. K, Pl.'s Dep. at 212:11-213:12,

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214:4-215:1. Defendant Officers then handcuffed Plaintiff. Id. at 215:15-22. During this entire incident, Plaintiff never pushed, swung at, or even attempted to move toward or run away from Defendant Officers. Defs.' LR 56.1(a)(3) Stmt., Ex. K, Pl.'s Dep. at 187:4-17, 406:9-14.

Defendants recount a different version of the facts. Defendants found Powell uncooperative from the beginning, yelling " I'm a f*cking security guard and I'm allowed to carry a weapon," after Officers Lopez and Siciliani commanded Powell to place his weapon on the ground. Defs.' LR 56.1(a)(3) Stmt. ¶ 8; id., Ex. C, Lopez Decl. ¶ ¶ 6-7; Ex. E, Siciliani Decl. ¶ ¶ 6-7. When Officer Tovar arrived on the scene, he observed a visibly agitated and angry Powell. Id., Ex. I, Tovar Decl. ¶ 3. Powell refused to produce identification and attempted to walk away from Tovar. Id. ¶ ¶ 4-5. Tovar informed Plaintiff that he was under arrest and instructed him to place his hands behind his back. Id. ¶ 5. In response, Powell pulled his arms away from Tovar and clenched his fist. Id. A short struggle ensued, and Tovar gave Powell a verbal warning that he intended to deploy his pepper spray. Id. ¶ 6. Once Tovar deployed the spray, he moved Powell to the ground. Id. Powell continued to resist Tovar's attempts to handcuff him by pulling his arms away and kicking his legs. Id.

Defendant Tovar prepared a police report concerning the incident, and Defendants charged Powell with the misdemeanor offenses of unlawful use of a weapon (" UUW" ) and resisting arrest. Id. ¶ 9; Defs.' LR 56.1(a)(3) Stmt., Ex. B, Defs.' Answer, ¶ ¶ 34, 38. At Powell's bench trial, only Defendants Tovar and Siciliani testified as witnesses for the prosecution. Defs.' LR 56.1(a)(3)(C) Stmt. ¶ 19. On April 25, 2012, the judge acquitted Plaintiff of both charges. Id. ¶ 18.

Defendant Tovar issued thirty-three parking tickets to Powell's vehicle beginning just two days after Powell's arrest and ending approximately three months later when Powell's vehicle was repossessed. Id. ¶ 20; Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 20.


Summary judgment is appropriate if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Court gives " the non-moving party the benefit of conflicts in the evidence and reasonable inferences that could be drawn from it." Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir. 2013); see Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Plaintiff sues Defendants under section 1983, which permits an individual to sue for damages for the deprivation of rights " secured by the Constitution and laws of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994).


Defendants argue that summary judgment should be granted because: (1) Defendant Officers had sufficient probable cause to arrest Plaintiff; (2) the force used was reasonable; and (3) in the alternative, Defendant Officers are entitled to qualified immunity. The Court addresses each argument in turn.

I. False Arrest (Count II)

Plaintiff alleges that Defendants lacked probable cause for his arrest, and therefore they violated his Fourth Amendment right to be free from unreasonable seizures. Pl.'s Resp. Br. 9. Defendants argue that summary judgment is warranted because they had probable cause to arrest

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Plaintiff. Defs.' Br. 7. Defendants also argue that they are entitled to qualified immunity. Id. at 17. As explained below, the Court finds that Defendants had a lawful basis to arrest Plaintiff for his undisputed possession of a gun while in a public street. Defendants also are independently entitled to summary judgment on this Count on grounds of qualified immunity.

" Probable cause to arrest is an absolute defense to any claim under Section 1983 against police officers for false arrest." Mustafa v. City of Chi., 442 F.3d 544, 547 (7th Cir. 2006). Police officers have " probable cause to arrest when the facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense." Sheik-- Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994). " Moreover, the court's inquiry is limited to what the officer knew at the time of the arrest and not what has been gained from hindsight." Harney v. City of Chi., 702 F.3d 916, 922 (7th Cir. 2012) (citing Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1057 (7th Cir. 2011)).

" In deciding this question of law as part of a motion for summary judgment, however, we must give the non-moving party the benefit of conflicts in the evidence about what the officers actually knew at the time." Williams v. City of Chi., 733 F.3d 749, 756 (7th Cir. 2013). With this in mind, the Court notes that:

[t]he law gives a police officer latitude to make reasonable judgments in light of the circumstances. While an officer may not close his or her eyes to clearly exculpatory facts, the Fourth Amendment does not require an officer with probable cause to arrest to wait while pursuing further investigation. In some situations, an officer may be required to conduct some investigation before making an arrest; in others, an officer may have probable cause for arrest without any need for investigation. Relevant factors include the information available to the officer, the gravity of the alleged crime, the danger of its imminent repetition, and the amount of time that has passed since the alleged crime.

Stokes v. Bd. of Educ. of City of Chi., 599 F.3d 617, 624-25 (7th Cir. 2010); see Guzell v. Hiller, 223 F.3d 518, 519-20 (7th Cir. 2000).

On the date of Plaintiff's arrest, the law in Illinois provided that " [a] person commits the offense of unlawful use of weapons when he knowingly . . . [c]arries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode . . . any pistol, revolver . . . or other firearm." 720 Ill.Comp.Stat. 5/24-1(a)(4).[3] Plaintiff argues that he was " on his land" when the officers observed him carrying his gun and therefore they lacked probable cause to arrest him for the UUW offense. Pl.'s Resp. Br. 12. In support, Plaintiff places considerable reliance on the Illinois Supreme Court case of People v. Laubscher. 183 Ill.2d 330, 701 N.E.2d 489, 233 Ill.Dec. 639 (Ill. 1998). Id.

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In Laubscher, the Illinois Supreme Court held:

Section 24-1(a)(4) broadly excepts from culpability any individual carrying a weapon while on " his land," meaning land over which he enjoys some ownership interest. There is nothing in the statute limiting the meaning of this phrase based upon the exclusivity of the individual's possession of the land, or the degree of public access he permits on the property. We believe that, had the legislature intended such a restriction, it would have explicitly provided for it. Further, to interpret this exception as the State suggests would be to expand the scope of the offense of unlawful use of weapons beyond the clear intent of the legislature.

701 N.E.2d at 492. " When determining whether a defendant was 'on his land' pursuant to section 24-1(a)(4), a jury may not consider the exclusivity of the defendant's possession or the degree of public access he permits." People v. Hayes, 308 Ill.App.3d 194, 719 N.E.2d 372, 375, 241 Ill.Dec. 511 (Ill.App.Ct. 1999).

Here, however, Plaintiff rented his apartment, and a renter does not necessarily have the same rights to the " on his land" exemption pursuant to section 24-1(a)(4). See Defs.' LR 56.1(a)(3) Stmt., Ex. K, Pl.'s Dep. at 13:16-14:4. In People v. Pulley, an Illinois Appellate Court addressed this specific issue, holding:

In exempting property owners or persons in their fixed place of business, the legislature was mindful of the need of people to defend their homes and businesses from unlawful intruders and the fact that the police cannot protect every home and every business 24 hours a day. The renter also has this right insofar as his apartment is concerned. However, to allow all of the renters of one apartment complex to carry or possess a weapon in the common areas would be to invite the situation that the legislature sought to prevent, i.e., the mass possession of weapons, which would pose a danger to the public and the police alike. In limiting the allowable possession of weapons to property in which one has ownership, the legislature has balanced a person's need to protect his home or business with the need of the general public and the police to be protected from potential use of weapons in situations unrelated to protecting one's ...

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