United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
In this suit under 42 U.S.C. § 1983, Lynette Kirchner alleges that several Cook County Sheriff officers unlawfully seized and imprisoned her in violation of the Fourth Amendment. Doc. 7. A one-week trial has been set for May 11, 2015. Doc. 33. Defendants have moved for summary judgment. Doc. 34. The motion is denied.
The following facts are stated as favorably to Kirchner, the non-movant, as the record and Local Rule 56.1 allow. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). In considering Defendants' summary judgment motion, the court must assume the truth of those facts, but it does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir. 2012).
At 8:00 a.m. on December 6, 2012, Cook County Sheriff officers Johnny Thorns and Darryl Manning arrived at Kirchner's home. Doc. 46 at ¶ 1; Doc. 52 at ¶ 3. Kirchner, who had gone to bed just a few hours earlier and had been unable to sleep, answered the door and invited the officers to step inside. Doc. 46 at ¶ 15; Doc. 52 at ¶¶ 2, 6. The officers were not in uniform, although one and possibly both wore a vest with the word "SHERIFF" across the front, and one officer showed his badge. Doc. 46 at ¶ 5; Doc. 52 at ¶¶ 3-4. Both officers were armed, but Kirchner was unable to see the weapons underneath their clothing. Doc. 46 at ¶ 12.
The officers asked Kirchner to accompany them to the Cook County Sheriff's office at the Markham courthouse for questioning. Id. at ¶ 1; Doc. 52 at ¶ 5. Kirchner told the officers that they could question her inside her home, but they refused, telling her that she "had to go with them" to the courthouse. Doc. 52 at ¶ 5. Kirchner replied that she was "exhausted" and that she needed to get some sleep before answering their questions. Id. at ¶ 6. Again the officers told Kirchner that she "had" to go with them, noting that she could sleep in the car; the officers were "polite" but "stern, " and Kirchner assented, feeling that she "did not have a choice." Doc. 46 at ¶ 23; Doc. 52 at ¶¶ 6-8. Kirchner offered to drive to the courthouse in her own car, but the officers said that they had to drive her themselves. Doc. 52 at ¶ 9.
After arriving at the Sheriff's office, Kirchner was patted down and placed in an interview room. Doc. 46 at ¶¶ 30-31. Two walls in the room were covered with large splotches of blood and feces. Doc. 52 at ¶¶ 12-14. Kirchner tried to open the door, but it was locked. Id. at ¶ 15. Two other officers, Steven Moody and Jim Davis, then entered the room. Id. at ¶ 16. Moody began to question Kirchner about a June 2012 shooting involving a man named Antwaan Bryant; Kirchner denied witnessing any shooting, complained that she was tired and that her head was fuzzy, and asked to go home and come back to talk to the officers after getting some sleep. Id. at ¶¶ 16-19. Moody replied that Kirchner could not leave until she told them what they wanted her to say about the shooting. Id. at ¶ 20. Moody even told Kirchner what her statement should say: that while sitting in her car and talking on the phone, she observed Bryant shoot somebody. Id. at ¶ 21. Moody said that Bryant was going to jail and that they needed "this" statement from her. Id. at ¶ 22.
Kirchner again told Moody that she wanted to go home, and she also asked for a lawyer, stating that her "mind was not clear" and that she needed someone to explain her rights. Id. at ¶¶ 23-24. Moody told Kirchner that she could not have a lawyer and repeated that she could not leave until she gave a statement. Id. at ¶ 25. When Kirchner complained about the condition of the interview room, Moody threatened to arrest her and take her downstairs, where it was "worse." Id. at ¶ 26. Moody told Kirchner to "think about it, " and he and Davis left the room. Id. at ¶ 27.
A fifth officer, Sheryl Collins, then entered the room, and Kirchner asked Collins at least three times for an attorney. Id. at ¶ 29. Kirchner also asked to be moved to a different room, and she informed Collins that she was diabetic and had felt threatened by Moody and Davis. Collins agreed with Kirchner that Moody and Davis were "going to lock [her] up" and told her that no other rooms were available. Id. at ¶¶ 30-32. Collins left the room at some point, locking the door and "fiddl[ing] around with the handle" so that Kirchner could tell it was locked. Id. at ¶ 33.
Eventually, Kirchner told Collins that she was willing to make a statement about the July 2012 shooting, but she made clear that the officers had told her what to say and that she did not know about the shooting. Id. at ¶ 34. Collins accompanied Kirchner to Assistant State's Attorney Kolasa's office, where Kolasa took Kirchner's statement, printed it, and reviewed it with her. Doc. 46 at ¶¶ 54-61. After making some corrections, Kirchner signed each of the statement's four pages, including the page that said, "Lynette states that she signed each and every page to show that it is accurate" and "Lynette states that everything in this statement is true and correct." Id. at ¶¶ 62-63; Doc. 35-8 at 4. Kirchner was given a turkey sandwich to eat and water to drink, and she was able to administer her diabetes medication and use the restroom. Doc. 46 at ¶¶ 66-69.
Defendants argue that the assertions in Kirchner's Local Rule 56.1(b)(3) materials that her signed witness statement was coerced and the product of being held against her will cannot be reconciled with the statement itself and therefore should be disregarded. It is true that Kirchner's signed statement says that "no threats or promises have been made to [Kirchner] to get her to make this statement and that she is giving this statement freely and voluntarily." Doc. 35-8 at 3. And Defendants correctly cite Janky v. Lake County Convention and Visitors Bureau, 576 F.3d 356, 362 (7th Cir. 2009), and Dobbey v. Zhang, 2013 WL 4838916, at *2 (N.D. Ill. Sept. 10, 2013), for the proposition that "litigants cannot create sham issues of fact with affidavits that contradict their prior depositions." However, Kirchner has not submitted an affidavit in opposition to summary judgment, and her signed witness statement is not a deposition, but rather a document that she claims was coerced and falsely coached. On summary judgment, the court cannot conclude that the representations in Kirchner's statement were freely given and truthful as opposed to coerced and false. Accordingly, the court will not disregard the relevant assertions in Kirchner's Local Rule 56.1(b)(3) materials.
Kirchner alleges that Thomas, Manning, Davis, Moody, and Collins violated her Fourth Amendment rights. To hold Defendants liable for violating the Fourth Amendment, Kirchner must show both that she was seized and that the seizure was unreasonable. See Brower v. County of Inyo, 489 U.S. 593, 599 (1989).
Defendants argue that the undisputed facts show that Kirchner was not "seized" within the meaning of the Fourth Amendment and, in the alternative, that they have qualified immunity from suit. With one minor qualification noted in Section II, infra, Defendants do not argue that any seizure was reasonable under the Fourth Amendment, and so any such argument is forfeited for summary judgment purposes. See Costello v. Grundon, 651 F.3d 614, 635 (7th Cir. 2011) ("As the moving party, the [defendant] had the initial burden of identifying the basis for seeking summary judgment."); Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th Cir. 2006) ("As a general matter, if the moving party does not raise an issue in support of its motion for summary judgment, the nonmoving party is not required to present evidence on that point, and the district court should not rely on that ground in its decision."); Logan v. Commercial Union Ins. Co., 96 F.3d 971, 979 (7th Cir. 1996) ("Only after the movant has articulated with references to the record and to the law specific reasons why it believes there is no genuine issue of material fact must the nonmovant present evidence ...