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Williams v. Village of Maywood

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

September 13, 2016

ERICA WILLIAMS, Individually, and as Administrator of the Estate of XAVIER McCORD, Deceased, Plaintiff,
v.
VILLAGE OF MAYWOOD, Officer MICHAEL BABICZ, Officer KYLE RICE, and Officer PETE SCHLEICH, Defendants.

          MEMORANDUM OPINION AND ORDER

          John Z. Lee United States District Judge

         Plaintiff 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.

         Factual Background

         The 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.

         Maywood 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.

         Rice 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.

         Meanwhile, 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.

         Turning 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.

         About 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.

         Babicz, 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[1] and then fired two rounds at him. Id. McCord fell to the floor, with his head in front of an apartment door. Id.

         According 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.

         Rice 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.

         Rice 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.

         The 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 ...


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