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Pena v. Village of Maywood

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

August 29, 2016

VILLAGE OF MAYWOOD, a municipal corporation, OFFICE REILLY, Star #305, Village of Maywood Police Officer, Defendants.


          Jeffrey Cole, Magistrate Judge

         The plaintiffs have filed a motion for reconsideration of the denial of their motion for summary judgment. Basically, the plaintiffs take umbrage with the denial on two fronts. First, they argue that their motion had to have been granted because the defendants' motion was denied. Second, they complain that the court raised issues that the defendants did not bring up. Neither position is well-taken, and their motion is denied.

         The plaintiffs begin their assault on the interlocutory Order of March 15, 2016, by relying on a line of cases stemming from Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). There, the court stated that a motion to reconsider is proper when “the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.” 906 F.2d at 1191. Along the way, the court relied on the decision espousing motions for reconsideration in Belmont v. Erie Ry., 52 Barb. 637, 641 (N.Y.App.Div.1869); 906 F.2d at 1191, and which the plaintiffs' brief quotes and attributes to “Justice Cardozo.” [Dkt. #79, at 2]. But, to be sure, this was not the “Justice Cardozo” - the illustrious Benjamin Nathan Cardozo, who was born a year after the Belmont decision - but his father, Albert, who, in 1874, resigned in disgrace from the New York Supreme Court in the midst of an investigation into allegations of judicial misconduct. See Andrew Kaufman, Cardozo, 13-20 (Harv. Univ. Press 1998); first/k/kaufman-cardozo.html (“If the name Cardozo today means Benjamin Cardozo and if it stands for a distinguished model of judging, in the nineteenth century the name Cardozo meant Albert Cardozo, and it stood for the corrupting effect of politics on law.”); Arthur Goodhart, Five Jewish Lawyers of the Common Law, 51-52 (Oxford Univ. Press 1949).

         The very case the plaintiffs quote, one of the many flowing from the takeover of the Erie Railway, was a facet of the scandal linking Cardozo pere with Tammany Hall's influence over outcomes of cases and appointments of receivers. So, given the judge's motivation, it is perhaps best not to put too much stock in his orders in Belmont v. Erie Ry. Still, it cannot be denied that motions for reconsideration have their place, McWilliams v. McWilliams, 2006 WL 3332879 (N.D.Ill. 2006); General Insurance Co. v. Clark Mall, 2009 WL 2901788 (N.D.Ill. 2009), even when they target interlocutory orders. See Peirick v. Indiana Univ. Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d 681, 694 (7th Cir. 2007)(“[a] district court [is] entitled to reconsider its initial denial of summary judgment”). But, such motions, as the Seventh Circuit continually reminds us, are rarely proper and are viewed unfavorably. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). And they are better-received if they do not border on the intemperate. See Robert Gettleman, How to Tell a Judge He Screwed Up, 32 LITIGATION 49, 51 (Summer 2006); Censke v. United States, 314 F.R.D. 609 (N.D.Ill. 2016).[1]

         With regard to the plaintiffs' first position, they seem to be operating under their own misapprehension about the nature of a summary judgment proceeding. They submit that, because the court denied the defendants' motion for summary judgment, that meant that the court had to rule that, as a matter of law, the defendants committed an illegal search. [Dkt. # 79, at 2-3]. Not so. In the context of cross-motions for summary judgment, ruling against one party's motion does not necessitate a ruling in favor of the other party's motion. As the Order stated, “[t]he fact that the parties file cross-motions for summary judgment does not necessarily mean that judgment is appropriate for one side or the other.” [Dkt. #78, at 2]. See also R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, Local Union 150, 335 F.3d 643, 647 (7th Cir. 2003); Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997); Miller v. LeSea Broad., Inc., 87 F.3d 224, 230 (7th Cir. 1996). The decision to deny both sides' motions was a decision based on the court's finding that neither side had met their burden of establishing they were entitled to judgment without a trial.

         The fact of the matter is, the record the parties put together, the arguments they formulated, and the authority on which they relied all missed the mark under Rule 56. There were too many factual questions left open on both sides to make summary judgment the appropriate means of disposing of this case in either side's favor. The parties failed to demonstrate that those questions - such as exigent circumstances and the reasonableness of Officer Reilly's reaction to the pit bull's attack - are not matters for a jury. In the case of exigent circumstances, for example, “[s]ummary judgment in favor of the defendant is improper unless, viewing the evidence in the light most favorable to the plaintiffs, it is clear that no reasonable jury could conclude that the plaintiffs' constitutional rights were violated.” Mabe v. San Bernardino Cty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1108 (9th Cir. 2001). As the Order indicated, the defendants didn't carry their burden here. [Dkt. #72]. But that doesn't mean that, on the other side of the coin, the plaintiffs showed that summary judgment in their favor was proper when the facts were viewed in a light most favorable to the defendants.

         As the defendants pointed out, Officer Reilly was responding to a call that there were unauthorized persons at a building where he and his partner had experience with various degrees of gang activity, including shootings, aggravated batteries, and the like. Several involved the plaintiff's son, who was a plaintiff in this case until the day the plaintiffs moved for summary judgment. Accordingly, viewing those facts in a light most favorable to the defendants, the court was unprepared to say, as a matter of law, exigent circumstances did not exist. The case the plaintiffs relied upon to support their position that there were not exigent circumstances as a matter of law, Hawkins v. Mitchell, 756 F.3d 983, 992 (7th Cir. 2014), had little to do with the fact pattern in this case - again, looking at the facts in the light most favorable to the defendants.

         In Hawkins, when officers responded to a domestic abuse call, they arrived to discover there had been no physical altercation, the woman was safe outside the residence, and she apologized for having called 9-1-1. 756 F.3d at 992. In our case, there was no such “dissipating” information for the officers to consider. Part of moving for summary judgment, to be sure, is depositing factual statements with the court. But as important a part, if not more so, is fashioning an argument in favor of one's position that is supported with applicable case law. Compare Massuda v. Panda Express, Inc., 759 F.3d 779, 783-84 (7th Cir. 2014); Price v. Board of Ed. of City of Chicago, 755 F.3d 605, 608 (7th Cir. 2014). The leap from the domestic argument that had ended in Hawkins to the building with a troubled and violent history in this case was too much to make.

         Moreover, the plaintiffs were also operating under a bit of a misapprehension about the burden of proof in this case. They claimed that the defendants bore a heavy burden to establish they acted pursuant to exigent circumstances, citing Welsh v. Wisconsin, 466 U.S. 740 (1984). [Dkt. # 57, at 6]. But Welsh was a criminal case. In Bogan v. City of Chicago, 644 F.3d 563 (7th Cir. 2011), the Seventh Circuit discussed, at length, the rationale for the plaintiff in a civil case bearing the burden of proving officers did not act reasonably. 644 F.3d at 568-71. As the court said, quoting Varlance v. Wisel, 110 F.3d 1269, 1279 (7th Cir. 1997), “‘[e]ven if a presumption of unreasonableness arises from the fact of a warrantless search, that does not serve in a civil case to shift ‘the burden of proof in the sense of the risk of nonpersuasion.'” 644 F.3d at 568. Add to that the fact that, in moving for summary judgment, the plaintiffs had to carry this burden while the facts were considered in a light most favorable to the defendants and establish their entitlement to judgment as a matter of law, one might say the heavy burden was actually theirs. And they didn't carry it.

         As such, given the shortfalls on both sides, summary judgment was inappropriate for either side, meaning that the matter had to remain a question for the jury. See, e.g., Bogan, 644 F.3d at 567, 572-73 (discussing jury's consideration of officer's version of the events and determination of whether exigent circumstances excused officer's warrantless search). If this was not made clear enough in the Order, it should be clear now. But, even prior to the Order, the court made known a number of its misgivings about both parties' presentations in its Order of December 16, 2015. [Dkt. #72]. While briefing was drawing to a close, the parties certainly would have been granted the opportunity to address those misgivings if they liked. They chose not to. Despite the nature of the plaintiffs' motion for reconsideration, the Order denying summary judgment was not the end of the case, but rather signals a trial was necessary.

         Also muddying the waters a bit in the summary judgment proceeding was the plaintiffs' argument that Officer Reilly's opening of the door and his wounding the attacking pit bull were inextricably linked. According to the plaintiffs, “as a matter of law, the natural and probable consequence of Defendant Reilly opening the door to the Plaintiffs' residence was that their family pet would aggressively pursue the intruder, and this was an unbroken sequence that led directly to the shooting [of] Spike in the head.” [Dkt. #57, at 11]. That was a rather bold statement, and given the record and the minimal development the plaintiffs gave to this proposition, I was not prepared to take such a leap. In fact, the very case the plaintiffs relied upon, Flint v. City of Milwaukee, 91 F.Supp.2d 1032 (E.D. Wisconsin 2015) - also involving dogs - held that the matter was inappropriate for summary judgment and should be left for the jury. 91 F.Supp.2d at 1046-49. Beyond that, there were significant differences between the instant case and Flint and all the cases the plaintiffs relied on - not only to show what's a “natural” consequence - but what was reasonable in the circumstances. [Dkt. # 78, at 12-14].

         That brings us to plaintiffs' second criticism of the denial of the summary judgment motion: that the court improperly raised certain issues sua sponte. But facts regarding the multiple laws the plaintiffs broke regarding their pit bull and the dog's violent history were all in the record and were thought to be of significance by the defendants. The court did not make them up; the plaintiffs even admitted them. [Dkt. #71, ¶¶ 28-36]. As for registration perhaps providing notice of the presence of a dangerous animal, the court did not raise that sua sponte either; the plaintiffs put it into the case by relying on a raft of decisions - including Flint, supra - in which the police officers had advance notice of the presence of a potentially dangerous dog, and that notice was a significant factor in those cases' analyses. [Dkt. # 57, at 11; Dkt. # 69, at 11; Dkt. # 78, at 13-14].[2] Was the court simply to ignore the glaringly obvious difference between the fact patterns of the case the plaintiffs relied on and the fact pattern here?

         Finally, the denial of plaintiffs' summary judgment motion does not, as plaintiffs put it more than once, set a “literally dangerous precedence [sic]” allowing police officers to summarily execute unregistered pets. [Dkt. #79, at 8, 9]. The Order does no such thing and the plaintiffs' reading of it puts out of view a significant factual component of what occurred, at least according to the record. Additionally, a district court Opinion or Order has limited utility; it is not a precedent at all, as the Seventh Circuit has held. Van Straaten v. Shell Oil Products Co. LLC, 678 F.3d 486, 490 (7th Cir. 2012)(“. . . decisions of district courts are not authoritative even within the rendering district. They cannot “settle” any proposition.”). The Order denying summary judgment is not even binding law of the case. Dictograph Prods. Co. v. Sonotone Corp., 230 F.2d 131, 135 (2nd Cir.1956) (L.Hand, J.); Curran v. Kwon, 153 F.3d 481, 487 (7th Cir. 1998). Beyond that, “[j]udges expect their pronunciamentos to be read in context, . . . .” Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005). All the ruling states is that the plaintiffs have not met their burden to establish their entitlement to summary judgment on the question of whether Officer Reilly acted unreasonably in wounding the animal that attacked him. In the plaintiff's view, the officer under the circumstances known to him, had a conscious and deliberate choice: he could allow himself to be bitten or killed by the (vicious) dog thereby perhaps avoiding a component of the plaintiff's suit for emotional harm or defend himself and face suit which would include damages for injury to the pet and the plaintiff's psyche. But things, for summary judgment purposes, are not as cut and dry or simple as the plaintiff's motion portray the events. The ultimate resolution of the case will be for the jury. And the impact of even that judgment will be limited to the parties and the specific and unique circumstances at hand.

         It bears repeating, it was the plaintiffs who injected the issue of notice of the presence of a dangerous animal into this case by relying on cases in which that was a significant part of the calculus of reasonableness. A court is certainly allowed, if not obligated, to address that and comment on the potential consequences of the plaintiffs' complete disregard of multiple laws. In discussing the laws the plaintiffs admitted breaking, the court focused on the issue of the plaintiff's right to even possess the animal under such circumstances, and unfortunately consigned a likely more significant question - damages in light ...

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