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Hill v. Rubald

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

January 18, 2017



          JORGE L. ALONSO United States District Judge

         Plaintiff brought this action against the City of Chicago and Chicago police officers Zachary Rubald, Robert Johnson, and Guy Habiak Jr. Plaintiff's claims stem from his traffic stop and arrest on July 2, 2011 and subsequent prosecution for aggravated unlawful use of a weapon. Defendants move for summary judgment on all of plaintiff's remaining claims pursuant to Federal Rule of Civil Procedure 56. For the reasons explained below, defendants' motion is granted in part, denied in part, and entered and continued in part.


         The Traffic Stop, Arrest, and Criminal Charges

         Plaintiff, Demetris Hill, lived in Chicago until 2007, when he moved to Minnesota. (ECF No. 141, Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 1.) In 2011, plaintiff moved from Minnesota to Georgia and has lived in Georgia since then. (Id.) On July 2, 2011, plaintiff and his wife, Kameo Hill, were passing through Chicago around 1:00 a.m. after having stopped to visit family while in the process of moving from Minnesota to Georgia. (Id. ¶ 2; ECF No. 130-5, Dep. of Demetris Hill 52-54.) Plaintiff was driving their Chevrolet TrailBlazer, traveling westbound on 84th Street toward Morgan Street. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 3.) Officers Rubald, Habiak, and Johnson were on patrol together that night in an unmarked Chicago police vehicle driven by Johnson. (ECF No. 134, Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶ 10.)

         Plaintiff says that he made a complete stop at the stop sign at 84th and Morgan and looked both ways before proceeding. (Demetris Hill Dep. 59, 128.) Rubald, however, says that plaintiff did not stop at the stop sign and instead tapped the brakes and drove through the intersection at about ten miles per hour. (ECF No. 130-7, Dep. of Zachary Rubald 22, 24.) The officers stopped plaintiff's vehicle just west of the intersection. (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶ 13.) Rubald says that as he exited the police car, he saw plaintiff turn and move toward the back of his seat as if he was reaching behind it. (Rubald Dep. 27, 29.) Rubald approached plaintiff's vehicle, asked plaintiff to step out, and escorted him to the rear of the vehicle. (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶¶ 16-18.) Mrs. Hill then exited the vehicle and was escorted to the passenger side of the police car. (Id. ¶ 19.)

         Rubald asked plaintiff whether there was a weapon in his vehicle, and plaintiff said yes. (Id. ¶¶ 20-21.) An unloaded nine-millimeter handgun was recovered from the vehicle, as well as a nine-millimeter magazine that contained nine bullets. (Id. ¶¶ 22-23.)[1] There is a dispute about where the gun and ammunition were found. Rubald says that he entered plaintiff's car from the driver's door, reached back between the driver's seat and front passenger's seat over the center console, and retrieved the gun from the floor of the vehicle, where it was lying uncased, partially underneath the back seat. (Rubald Dep. 41-43.) He says that he found the magazine with ammunition in the center console. (Id. at 46.) But according to plaintiff and his wife, plaintiff's gun was in a closed case, in a compartment for the spare tire located under the floorboard of the TrailBlazer, which the officers accessed by lifting the rear hatch and then opening the compartment door. (Demetris Hill Dep. 102-03; ECF No. 130-6, Dep. of Kameo Hill 40-42.) Plaintiff and his wife also say that the ammunition for the gun was in the locked glove compartment. (Demetris Hill Dep. 107-08; Kameo Hill Dep. 54-57.) Mrs. Hill testified at her deposition that she deliberately put the gun and ammunition in those places when she was packing the car in order to make the gun inaccessible and because she was not comfortable with it “just sitting out, ” as well as to separate the gun and ammunition “because they're not supposed to be close to each other.” (Kameo Hill Dep. 56-58.)

         Plaintiff's TrailBlazer had Minnesota license plates, and plaintiff had his possession his valid Minnesota driver's license, which showed his Lakeville, Minnesota address. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶¶ 9-10.) Although plaintiff had an expired Illinois Firearm Owner's Identification Card (“FOID”), he showed Rubald that he had a valid “Minnesota State Permit to Acquire Handguns from Federal Firearms Dealers” (the “Minnesota permit”). (Id. ¶ 8; Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶ 24; ECF No. 130-12, Defs.' Ex. L.) Plaintiff and his wife say that Rubald took this permit from plaintiff's wallet and tossed the permit on the hood of the police car. (Demetris Hill Dep. 113; Kameo Hill Dep. 45.) Mrs. Hill was unable to hear the entire ensuing conversation between plaintiff and Rubald but recalls that with respect to the permit, Rubald asked, “What does that mean? What is this?” and plaintiff replied, “That's a Minnesota license to carry a firearm. That's what they gave me.” (Kameo Hill Dep. 45-46.) Plaintiff says that Rubald replied, “That doesn't mean anything in this state.” (Demetris Hill Dep. 113.) Rubald denies that he put the contents of plaintiff's wallet on the hood of the police car, but he does not deny that he made such a comment about the Minnesota permit. (Rubald Dep. 63-64; Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 12.)[2] Rubald testified at his deposition that he “couldn't verify that it was actually a . . . legal Minnesota card”; the Minnesota permit was only for buying firearms and “didn't mention anything about carrying them”; and that “because it didn't pertain to Illinois law, ” he did not take any steps to investigate whether it was a legal Minnesota card. (Rubald Dep. 69.)

         Plaintiff was arrested and handcuffed. Rubald and Habiak transported him in their police vehicle to the Sixth District police station. (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶ 25.) Mrs. Hill was left alone at the scene and had to call family members for a ride. (Kameo Hill Dep. 63-66.) Johnson drove plaintiff's vehicle from the scene to the station, where it was parked in a secure parking lot. (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶ 26.) At 3:30 a.m., plaintiff's vehicle was towed from the police station to an impound lot near 103rd Street and Doty Avenue. (Id. ¶ 30.)

         At the police station, Rubald spoke on the telephone with Cook County State's Attorney Nicholas Kantas and asked Kantas what charges, if any, should be brought against plaintiff. (Id. ¶ 33.) At 3:45 a.m., the Cook County State's Attorney's Office approved a charge against plaintiff for aggravated unlawful use of a weapon (“UUW”), a felony. (Id. ¶ 36.) In approving the charge, Kantas relied what Rubald told him about plaintiff's actions and proximity to the gun, what plaintiff had said, and where in the vehicle the gun and ammunition were recovered. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 14.) Kantas recorded the information he received from Rubald on a “Crime Fact Sheet.” (ECF No. 130-13, Dep. of Nicholas Kantas 15-16 & Ex. 1.) His fact sheet for this incident states under “Incident Notes” that the arresting officers observed Hill drive through a stop sign; Hill was pulled over; he was seen “making movements in the back seat of the car”; when Hill was ordered from the car, he told the officers that there was a gun in the back seat and ammunition in the front center console; and Hill was taken into custody. (Id., Ex. 1.) The section of the fact sheet pertaining to Hill's oral statement reads: “D. stated in summary that he bought the gun in Minnesota and he had kept it in the car since he bought it.” (Id.) The fact sheet bears an outdated Illinois address on South Morgan Street in Chicago for both Mr. and Mrs. Hill; Kantas said that he had no way of knowing whether that information came from an officer or from a computer search that Kantas himself had performed when reviewing the matter. (Kantas Dep. 16-17 & Ex. 1.)

         Rubald prepared the relevant “Arrest Report” and “Original Case Incident Report.” (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶ 27.) The reports, which list different versions of plaintiff's outdated Chicago address, state that after observing plaintiff commit a traffic violation and approaching him to issue a citation, Rubald noticed plaintiff making “furitive [sic] movements towards the rear of the vehicle.” (Rubald Dep., Exs. 7 & 8.) They further state that plaintiff told the officers that there was a gun on the floor near the rear passenger seat, which was recovered, in addition to a magazine with nine bullets in the center console arm rest. (Id.) The reports also state that plaintiff told Habiak that he “bought the gun in Minnesota for $560 and that he has had the gun in his car since he left Georgia.” (Id.)

         Habiak completed the “Vehicle Tow Report” for plaintiff's car as well as the following criminal complaints against plaintiff: (1) a misdemeanor complaint for possession of ammunition without a FOID; (2) a complaint for preliminary examination for the felony charge of aggravated UUW; (3) a Class C misdemeanor/ordinance violation complaint for possessing a firearm without a valid registration certificate; and (4) a misdemeanor complaint for possessing a firearm without a FOID. (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶ 29; ECF Nos. 130-17, 130-18, 130-19 & 130-20.) With Rubald's permission, Habiak signed Rubald's name to each of the four complaints after he told Rubald what he was writing and Rubald reviewed each one. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 23; Rubald Dep. 105-08; ECF No. 130-9, Dep. of Guy Habiak Jr. 103.) In the complaint for aggravated UUW, Rubald swore under oath that plaintiff “had in his possession a firearm in any vehicle which was unloaded, uncased and the ammunition for the weapon was immediately access[i]ble at a time of the offense and he was not on his own land, abode or fixed place of business in violation of 720 ILCS 5/24-1.6-A-1.” (ECF No. 130-18.)[3] In the other complaints, Rubald averred that plaintiff possessed a gun and ammunition without a valid FOID or registration certificate. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶¶ 20-22.)

         Johnson completed property inventory reports (which Rubald signed) as well as a “Chicago Police Department Citation and Complaint” for failing to stop at a stop sign; the citation bore plaintiff's Minnesota address. (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶¶ 28, 40; ECF No. 130-8, Dep. of Robert Johnson, Ex. 2; (Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 18.)

         Johnson obtained that address either through the law enforcement computer network or from plaintiff's Minnesota driver's license. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 24.) Johnson did not inventory any gun case, FOID card, or Minnesota permit in relation to plaintiff's arrest, nor did the officers document in any way that plaintiff's gun was in a case. (Id. ¶¶ 16-18.)

         The Legal Proceedings

         On August 4, 2011, Rubald testified at plaintiff's preliminary hearing on the aggravated UUW charge. (Id. ¶ 29.) He testified that he saw plaintiff run a stop sign stop sign at 84th and Morgan; after plaintiff was stopped and Rubald approached the vehicle, he saw plaintiff “making furtive movements toward the rear of his seat;” an unloaded gun was found on the floor of the vehicle behind the driver's seat; and a magazine containing nine bullets was found in the arm rest and was “immediately accessible.” (Id.; ECF No. 135-9, Prelim. Hr'g Tr.) Rubald also testified that the gun was not in a case and he did not find a case in the car. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 30.) On direct examination, Rubald stated that plaintiff did not have a valid FOID at the time. (Prelim. Hr'g Tr. 5.) On cross-examination, Rubald conceded that plaintiff had the Minnesota permit but stated that he had “no idea” whether it was valid. (Id.) He also stated that although plaintiff's identification reflected that he had been living in Minnesota, he didn't “know for certain if [plaintiff] was [living there] or not.” (Id. at 10.)

         The judge presiding over the preliminary hearing acknowledged that the FOID statute (which prohibits the possession of a firearm in Illinois without a FOID) contains an exemption for nonresidents who have “an out of state card.” (Id. at 11.) She nonetheless found that probable cause existed for the aggravated UUW charge because Rubald “testified clearly [that] the gun was not in a case, ” and the version of the statute applicable at that time provided that regardless of whether one has a valid FOID, one can be criminally liable when the firearm possessed was unloaded yet uncased and the ammunition for the weapon was immediately accessible. (Id.; see also 720 ILCS 5/24-1.6(a)(1)(3)(B) (Ill. P.A. 96-1107, § 5, eff. Jan. 1, 2011).) So the felony case against plaintiff proceeded, and the remaining charges were dismissed by way of nolle prosequi. (Prelim. Hr'g Tr. 11-12.)

         Plaintiff's criminal bench trial took place on June 6, 2013. (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶ 44.) Rubald and Habiak testified, but Johnson did not. (Id. ¶¶ 45-46.) Plaintiff and his wife testified. (ECF No. 130-22, Dep. of Gerardo Tristan 16.) Plaintiff was found not guilty. (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶ 49.)

         The Warrant on the Electronic Docket

         After the criminal trial concluded, plaintiff was told by a court employee that a warrant had been issued for his arrest; he was never arrested as a result. (Pl.'s Resp. Defs.' LR 56.1(a)(3) Stmt. ¶¶ 50, 52.) A screen shot of the Circuit Court of Cook County's electronic docket for plaintiff's criminal case, taken on July 1, 2013, includes two entries indicating that a warrant was ordered and issued, specifying “no bail, ” on June 6, 2013, the day of trial. (Id. ¶ 51.) No warrant was written as a court order, nor is there any warrant in the court file. (Id. ΒΆ 62.) The two entries no longer appear on the electronic docket, and the chief deputy clerk for the Circuit Court testified at a deposition that he believes that they were mistakes that were later corrected by someone with access to modify the electronic docket. (ECF No. 130-24, Dep. of John Biga 24, ...

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