United States District Court, N.D. Illinois, Eastern Division
ERICA WILLIAMS, Individually, and as Administrator of the Estate of XAVIER McCORD, Deceased, Plaintiff,
VILLAGE OF MAYWOOD, Officer MICHAEL BABICZ, Officer KYLE RICE, and Officer PETE SCHLEICH, Defendants.
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge
Erica Williams, individually and on behalf of the estate of
her son, Xavier McCord, brings claims against the Village of
Maywood and Maywood police officers Michael Babicz, Kyle
Rice, and Pete Schleich under 42 U.S.C. § 1983 and state
law. Defendants Village of Maywood and Officers Babicz, Rice,
and Schleich have moved for summary judgment on all claims.
For the reasons provided herein, the Court grants in part and
denies in part Defendants' motion.
following facts are undisputed except where noted. On
November 8, 2012, Xavier McCord met up with his friends,
Keontac McKinney and James Bickhem. Defs.' Ex. 2,
McKinney Dep. at 16-18. The three friends took a bus to an
apartment building at 19th Avenue and Madison Street in
Maywood to meet a fourth friend, Marshawn Moore. Defs.'
Ex. 2, McKinney Dep. at 23-25, 31-33; Defs.' Ex. 3,
Bickhem Dep. at 14-17. The group went to the apartment
building almost every day to hang out and play games.
Pl.'s Ex. 1, McKinney Dep. at 29-30; Pl.'s Ex. 2,
Bickhem Dep. at 17. On this particular day, McCord did not
enter the building with his friends, but he remained outside
the rear door of the apartment building, texting. Pl.'s
Ex. 1, McKinney Dep. at 26-27; Pl.'s Ex. 2, Bickhem Dep.
at 16, 18.
police officers Michael Babicz and Kyle Rice were partners
that day. Defs.' Ex. 4, Babicz Dep. at 8; Defs.' Ex.
5, Rice Dep. at 9. At approximately 4:30 p.m., they were
passing the parking lot behind the apartment building.
Pl.'s Ex. 3, Babicz Dep. at 12; Pl.'s Ex. 6, Rice
Dep.”), at 13. From their patrol car, the officers saw
McCord, who was walking away from the building looking down
at his phone. At that point, McCord purportedly looked up
from his phone in the officers' direction and immediately
turned around to enter the apartment building through the
rear door. Pl.'s Ex. 6, Rice Dep. at 13.
and Babicz exited their squad car, purportedly to conduct a
field interview of McCord because of his
“suspicious” conduct. Defs.' Ex. 4, Babicz
Dep. at 13-14; Defs.' Ex. 5, Rice Dep. at 20. The
officers do not claim that they observed McCord committing a
crime or carrying a gun, and they do not suggest that they
had probable cause to justify an arrest or reasonable
suspicion to justify detaining McCord temporarily.
Nevertheless, the Babicz and Rice decided to follow him into
the apartment building.
two other Maywood police officers, Peter Schleich and
Lawrence Verpil, were driving by in their own patrol car and
saw Babicz and Rice exit theirs. Pl.'s Ex. 4, Verpil Dep.
at 12-13. Schleich and Verpil approached Babicz and Rice, who
were standing on the corner, and asked, “You guys
okay?” Pl.'s Ex. 7, Schleich Dep. at 12. Babicz and
Rice answered, “Yeah, yeah. We're good.”
Id. Schleich and Verpil then drove away and headed
southbound on 19th Avenue. Id. at 13. According to
Verpil, as he and Schleich were driving away, he looked over
his shoulder and saw Babicz and Rice running. Pl.'s Ex.
4, Verpil Dep. at 13. Over the radio, he asked them,
“What's going on? What's going on?” and
“Hey guys, what have you got?” Id. But
there was no answer. Id. Verpil then heard Babicz
scream over the radio, “Shots fired, shots
fired.” Id. at 13, 15. At that point, Schleich
activated his patrol car lights and returned to the apartment
building. Defs.' Ex. 7, Schleich Dep. at 14.
back to McCord, upon entering the apartment building, he told
his friends that the police were “hot, '”
meaning that police officers were patrolling the area.
Pl.'s Ex. 1, McKinney Dep. at 32. A number of people were
on the stairwell, so McCord walked up the stairs and stood on
the second landing to talk to McKinney. Id. at 36.
four minutes later, Babicz and Rice entered the building.
According to McKinney and Bickhem, the officers entered with
their guns drawn (or drew them quickly after entering) and
began ascending the stairs after McCord, ignoring everyone
else. Pl.'s SOAF ¶¶ 19-21; Pl.'s Ex 1,
McKinney Dep. at 38; Pl.'s Ex 2, Bickhem Dep. at 29.
Babicz and Rice dispute this account. Babicz testified that
he drew his gun as he was running up the stairs after McCord
(although it is not clear why), and Rice testified that he
drew his gun after seeing Babicz do so. Defs.' Ex. 4,
Babicz Dep. at 20; Defs.' Ex. 5, Rice Dep. at 24.
who was ahead of Rice on the stairs, Defs.' Ex. 4, Babicz
Dep. at 17-18; Defs.' Ex. 5, Rice Dep. at 22, testified
that he saw a chrome handgun in McCord's right hand as he
followed him up the stairs, Defs.' Ex. 4, Babicz Dep. at
20. When McCord reached the third floor, according to Babicz,
he began to turn around, “raising [the gun] up a little
bit.” Id. at 22. Babicz ordered him to drop
the gun and then fired two rounds at him.
Id. McCord fell to the floor, with his head in front
of an apartment door. Id.
to Rice, he lost sight of McCord while ascending the narrow
stairs, Defs.' Ex. 5, Rice Dep. at 24. But, after the
shots were fired, Rice saw “a chrome plated
semiautomatic handgun . . . bounce down the stairs and land[
] on the second floor platform.” Defs.' Ex. 5, Rice
Dep. at 25.
recounts that he quickly picked up the fallen gun in order to
secure the scene. Id. at 26. Rice then contacted
dispatch to report the shooting while Babicz handcuffed
McCord. Id. at 28-30. The two officers then went
outside. Id. at 28-30. Rice asked Babicz to turn
over his service weapon, as is protocol when an officer has
shot someone, but Babicz refused to do so until other
officers arrived on the scene. Id.
recalls that Schleich was the first other officer to arrive
on the scene. Id. at 31. When additional officers
had also arrived, Babicz gave his service weapon to Rice, at
which point Rice placed it, along with the gun he purportedly
recovered from the scene, into the trunk of their patrol car.
Id. at 29-31. Once other officers arrived, Rice
testified, he retrieved the recovered gun from his patrol car
and put it back at the scene of the shooting. Defs.' Ex.
5, Rice Dep. at 34.
accounts of Officers Schleich and Verpil differ from the
accounts of Babicz and Rice. Schleich and Verpil testified
that, when they first arrived at the apartment building,
Verpil secured the rear door while Schleich went inside.
Pl.'s Ex. 4, Verpil Dep. at 15; Defs.'s Ex. 7,
Schleich Dep. at 17. Schleich saw Rice, still inside,
“standing in the middle of the second set of stairs by
a weapon.” Defs.'s Ex. 7, Schleich Dep. at 18.
Schleich then ran past Rice on the stairs to where Babicz was
handcuffing McCord. Id. Verpil recollected that
Babicz and Rice ...