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Smith v. City of Chicago

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

November 9, 2015

DARNELL SMITH, et al., Plaintiffs,
CITY OF CHICAGO, et al., Defendants

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          For Darnell Smith, Darren Nathan, Gregory Davis, Jeff Coleman, Phillip Overton, Marque Ross, individually and on behalf of a class of all others similarly situated, Mark Nevilles, Anthony L. Brown, Christopher Locke, Hector Fantanez, Marcell Davis, Anthony Polk, Calvin Jackson, Carl N. McCord, Timothy Thigpen, Keith Riggins, James Shinaul, Brandon Buford, Melvin Thompson, Lavester McWane, Deandre Stewart, Steve McAbee, Herbert Dyer, Jr., Arthur Stringer, Jonathan Jackson, Shantay Johnson, Arthur Moton, Dudley Burns, Edgar Marshall, Michael Sanders, Rashawn Lindsey, Sidney Bell, Calvin Jackson, Plaintiffs: Angela Pauline Kurtz, Antonio Maurizio Romanucci, Martin D Gould, Romanucci & Blandin LLC, Chicago, IL.

         For Mark Nevilles, Darion Beene, Plaintiffs: Angela Pauline Kurtz, Romanucci & Blandin, LLC, Chicago, IL.

         For City of Chicago, The, a municipal corporation, Garry McCarthy, Chicago Police Superintendent, in his individual and official capacity, Defendants: Allan T. Slagel, LEAD ATTORNEY, Gabriel Reilly-Bates, Jeffrey M. Schieber, Michael P. Sheehan, Taft Stettinius & Hollister LLP, Chicago, IL.

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         AMY J. ST. EVE, United States District Judge.

         On June 22, 2015, Plaintiff Darnell Smith, along with thirty-three other named Plaintiffs, brought the present Amended Complaint, individually and on behalf of a class of all others similarly situated, against Defendants City of Chicago, Chicago Police Superintendent Garry McCarthy, and John Doe Chicago police officers alleging violations of their constitutional rights in relation to the Chicago Police Department's stop and frisk policies and practices. See 42 U.S.C. § 1983. Plaintiffs also bring claims under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and state law. Before the Court is Defendant Superintendent Garry McCarthy's motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) and Defendant City of Chicago's motion to dismiss under Rules 12(b)(6) and 12(b)(1).[1]

         For the following reasons, the Court grants in part and denies in part the City's motion to dismiss, and grants in part and denies in part Defendant McCarthy's motion to dismiss. The Court grants Plaintiffs leave to amend their allegations to substitute the parents of the minor plaintiffs as named Plaintiffs because, under Illinois law, a minor lacks the legal capacity to initiate proceedings in his own name, but instead, must appear by guardian, guardian ad litem, or next friend. See Klak v. Skellion, 317 Ill.App.3d 1092, 1095, 251 Ill.Dec. 694, 741 N.E.2d 288 (1st Dist. 2000); Fed.R.Civ.P. 17(b)(1).


         I. Federal Rule of Civil Procedure 12(b)(6)

         " A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

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challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted." Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under Rule 8(a)(2), a complaint must include " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Under the federal notice pleading standards, a plaintiff's " factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Put differently, a " complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). " In reviewing the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts in the complaint as true, Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013), and draw " reasonable inferences in favor of the plaintiffs." Teamsters Local Union No. 705 v. Burlington No. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014). The relevant question at the motion to dismiss stage is not whether the plaintiff will ultimately prevail on the merits, but whether the complaint is sufficient to cross the federal pleading threshold. See Skinner v. Switzer, 562 U.S. 521, 529-30, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). Also, a plaintiff need not anticipate and overcome affirmative defenses in his complaint unless he alleges sufficient facts that establish any such affirmative defenses. See Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th Cir. 2015); see also O'Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015) (" A complainant can plead himself out of court by including factual allegations that establish that the plaintiff is not entitled to relief as a matter of law." ).

         II. Federal Rule of Civil Procedure 12(b)(1)

         Rule 12(b)(1) allows a party to raise as a federal court's lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). Because standing implicates the Court's subject matter jurisdiction, the Court reviews the City's standing arguments under Rule 12(b)(1). Under Rule 12(b)(1) " the district court must accept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff's favor, unless standing is challenged as a factual matter." Remijas v. Neiman Marcus Group, LLC, 794 F.3d 688, 691 (7th Cir. 2015) (citation omitted). The party invoking federal jurisdiction bears the burden of establishing the required elements of standing. See Johnson v. United States OPM, 783 F.3d 655, 661 (7th Cir. 2015).


         In their Amended Complaint, the named Plaintiffs allege that Defendants have implemented and continue to enforce, encourage, and sanction a policy, practice, or custom of unconstitutional stops and frisks of Chicago residents by Chicago Police Department (" CPD" ) officers. (R. 22, Am. Compl. ¶ 2.) Plaintiffs assert that pursuant to this widespread practice, CPD officers often have used and continue to use race and/or national origin as the determinative factors in deciding to stop and frisk individuals -- instead of reasonable suspicion pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny -- and that the victims of this profiling are principally African-American and Hispanic males. ( Id. ¶ 3.) Also, Plaintiffs allege that CPD's widespread practice has flourished as a result of, and is directly and proximately caused by, policies, practices, or customs that the City and its final policymakers, including Superintendent

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McCarthy, have devised, implemented, and enforced. ( Id. ¶ 4.) As such, Plaintiffs maintain that the City and Superintendent McCarthy have acted with deliberate indifference to the constitutional rights of those who would come into contact with CPD officers by: (a) failing to properly screen, train, and supervise CPD officers; (b) inadequately monitoring CPD officers and their stop and frisk practices; (c) failing to sufficiently discipline CPD officers who engage in constitutional abuses; and (d) encouraging, sanctioning, and failing to rectify the alleged unconstitutional practices. ( Id. ¶ 4.) Furthermore, Plaintiffs assert that as a direct and proximate result of this widespread practice, CPD officers have subjected hundreds, if not thousands, of City residents, particularly African-American and Hispanic males, to unconstitutional stops and frisks. ( Id. ¶ ¶ 5, 459, 462.)

         Plaintiffs assert that they are all African-American or Hispanic men who reside in and/or visit minority neighborhoods where CPD officers allegedly conduct the unconstitutional stops and frisks. ( Id. ¶ ¶ 59, 445.) They state that " [a]s long as the CPD engages in its policy, practice, or custom of suspicionless stops and frisks, the named Plaintiffs are, and will remain, at high risk of being illegally stopped and frisked again by the CPD." ( Id. ¶ 59.) In addition, Plaintiffs explain that CPD officers have repeatedly stopped and frisked many of them. ( Id. ) Plaintiffs allege, for example, that the same group of CPD officers unlawfully stopped one of the named Plaintiffs three times on the same day in the same neighborhood. ( Id. ¶ 186.) The named Plaintiffs seek compensatory and punitive damages for themselves, as well as an award of attorneys' fees and costs. ( Id. ¶ ¶ 6, 59.) Further, the named Plaintiffs seek to represent a certified class for the purpose of obtaining injunctive and declaratory relief. ( Id. ¶ 6.) Specifically, they seek a class-wide judgment declaring that the alleged widespread practice violates the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment. ( Id. )


         I. Mootness

         The City argues that Plaintiffs' claims for prospective, injunctive relief are moot based on an August 2015 settlement agreement between the City and the American Civil Liberties Union of Illinois (" ACLU" ). See Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015) (" for federal courts to retain jurisdiction over a case, there must be an 'actual, ongoing controvers[y],' and the absence of one renders a case moot and deprives the court of subject matter jurisdiction." ) (citation omitted). To clarify, on August 6, 2015, the City entered into an Investigatory Stop and Protective Pat Down Settlement Agreement (" Agreement" ) with the ACLU. Prior to the Agreement, specifically in March 2015, the ACLU published a report regarding its investigation into the CPD's practice of stop and frisk. (Am. Compl. ¶ 441.) The ACLU found that for half of the CPD's stops (based on the sample analyzed), the police officer did not record legally sufficient reasons to establish reasonable suspicion. ( Id. ¶ 442.) In addition, the ACLU concluded that a large percentage of Chicago police officers did not record any reasons for the stops -- even though the CPD requires that officers do so -- and that these stops made without sufficient cause violate the Fourth Amendment guarantee against unreasonable searches and seizures. ( Id. ) In collecting and analyzing data, the ACLU reviewed Chicago police officers' " contact cards" that the officers are required to fill out to justify their stops. ( Id. ¶ 440.)

         In its motion to dismiss, the City maintains that under the Agreement, it has

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committed to changing many of the CPD policies and practices that Plaintiffs challenge in the present lawsuit. Accordingly, the City argues that the Agreement is fatal to the named Plaintiffs' equitable claims brought pursuant to Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because Plaintiffs challenge procedures that no longer exist. In support of its argument, the City relies on Federation of Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir. 2003), which states in relevant part, " [a] question of mootness arises when, as here, a challenged ordinance is repealed during the pendency of litigation, and a plaintiff seeks only prospective relief." The Seventh Circuit in Federation further explained, " we have repeatedly held that the complete repeal of a challenged law renders a case moot, unless there is evidence creating a reasonable expectation that the City will reenact the ordinance or one substantially similar." Id. at 930. Also, the Federation decision states that " a defendant's change in conduct cannot render a case moot as long as the plaintiff makes a claim for damages." Id. at 929.

         Here, the City did not repeal a challenged ordinance, but entered into a settlement agreement with the ACLU promising to correct past misconduct by March 1, 2016. (R. 34-1, ACLU Agmt. ¶ 3.) Under these circumstances, a Northern District of California district court case in which the defendant relied upon Seventh Circuit case law is instructive. Specifically, in Kliegman v. County of Humboldt, No. 09 CV 0006 NJV, 2010 WL 2382445, at *3 (N.D. Cal. June 10, 2010), the defendant county argued that based on its settlement agreement with the United States Department of Justice (" DOJ" ) in relation to certain ADA compliance issues, the plaintiff's claims were moot. The district court, referring to the Federation decision and Chicago United Industries, Ltd. v. City of Chicago, 445 F.3d 940, 947 (7th Cir. 2006), reasoned as follows:

These cases stand for the proposition that injunctive claims become moot after the challenged government misconduct has ceased or has been corrected. But Defendant attempts to extend these cases much further -- to situations where the government has promised to correct its misconduct, but before the government has actually corrected its misconduct. Defendant's argument, while creative, goes too far.
In both Federation of Advertising Industry Representatives, 326 F.3d at 924, and Chicago United Industries, 445 F.3d 940, the court found the plaintiff's claims were moot because the government misconduct that was challenged had actually ceased or had been corrected. In Federation of Advertising Industry Representatives, the challenged ordinance was repealed during litigation and the Seventh Circuit held that the plaintiff's challenges to this ordinance, where the plaintiff only sought prospective relief, were therefore moot. 326 F.3d at 929-30. In Chicago United Industries, the plaintiff contractor sued for injunctive relief against the defendant city after the city terminated its contracts with the plaintiff and instituted a three-year bar, suspecting fraudulent billing by the plaintiff. 445 F.3d 940. After the suit was filed, the government ceased and corrected its challenged conduct by reinstating the cancelled contracts, rescinding the debarment, adopting a new rule that authorizes a pre-debarment hearing, and promising the court that the plaintiff would be entitled ...

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