United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER, JUDGE
Robert Simmons's Motion for Summary Judgment on his 42
U.S.C. § 1983 unlawful detention claim (“the
Motion”) [ECF No. 78] is granted in part and denied in
Court denies the Motion except as to Defendant
Piechocki's liability for unlawfully and unreasonably
ordering Plaintiff's arrest without probable cause.
However, genuine disputes of material fact remain as to
whether any Defendant Officers could reasonably have foreseen
Plaintiff's protracted and unreasonable detention
following his arrest. Before summarizing the undisputed
facts, the Court briefly addresses the nature of the
parties' briefing and why it will decide Defendants'
Motion for Summary Judgment separately.
filed the Motion along with a Local Rule 56.1(a)(3) Statement
of Uncontested Material Facts [ECF No. 79] (the
“Plaintiff's Statement”). Defendants
responded to Plaintiff's Statement [ECF No. 84] and
submitted a “Response in Opposition to Plaintiff's
Motion for Summary Judgment and Memorandum in Support of
Defendants' Cross Motion for Summary Judgment” [ECF
No. 85] (the “Response”]. This filing was
accompanied by a Local Rule 56.1(b)(3) Statement of
Uncontested Additional Facts [ECF No. 86] (the
“Defendants' Statement”), but no Local Rule
56.1(a)(3) Statement of Uncontested Material Facts. Plaintiff
then submitted a Reply Brief in support of Plaintiff's
Motion [ECF No. 91] and responded to Defendants'
Statement [ECF No. 92].
only after these filings, which consummated the briefing on
Plaintiff's Motion, that Defendants filed their
“Joint Partial Motion for Summary Judgment” [ECF
No. 93], incorporating their Response filed almost two weeks
prior and attaching a Rule 56.1(a)(3) Statement [ECF No. 94].
Plaintiff then responded, contesting some facts and admitting
others. These filings introduced a host of facts surplus to
those forming the basis of Plaintiff's Motion on his
unlawful detention claim and the associated briefing.
Rule 56.1 provides inter alia that a moving party
shall serve and file “[w]ith each motion
for summary judgment” a statement of uncontested
material facts. N.D.Ill. L.R. 56.1(a) (emphasis added). A
district court has broad discretion to require strict
compliance with the rule. See, e.g., Koszola v. Bd. of
Educ. of the City of Chicago, 385 F.3d 1104, 1109 (7th
Cir. 2004). As such, the Court treats the relevant portions
of Defendants' Response as a brief in opposition to
Plaintiff's Motion. In a separate opinion, it decides
Defendants' “Joint Partial Motion for Summary
Judgment” with full consideration of any relevant
arguments in the Response as well as the briefs and fact
statements filed after Plaintiff's Motion was fully
purposes of this Motion, the following facts are viewed in
the light most favorable to Defendants (the non-movants), and
all reasonable inferences are drawn in their favor. See,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
March 9, 2014, Defendant D'Amato obtained a search
warrant for a single-family residence located at 2725 East
92nd Street in Chicago, Illinois (“the
residence”). (ECF No. 84 ¶ 5.) Its target was an
African-American male nicknamed “Sunny, ”
approximately 45-50 years in age,
5'5”-5'8” in height, weighing 140-160
pounds, and with brown eyes, a dark complexion, and black
hair worn long and wavy. (Id. ¶ 6.) The warrant
was procured with the assistance of a confidential informant,
who claimed to have purchased narcotics from
“Sunny” out of the basement door of the
residence. (ECF No. 92 ¶ 4.)
Simmons is an African-American male of medium-brown
complexion. (ECF No. 92, Ex. F (“Arrest Rep.”),
p.1.) On March 9, 2014, he was 67 years old, 5'11”
tall, 165 pounds, with brown eyes and short hair - either
“buzzed or bald.” (ECF No. 84 ¶ 7;
MacFarlane Tr. 42:17-22; Arrest Rep. at p.1.) He lived at 222
West 106th Place in Chicago, Illinois. (Id.) Simmons
has never lived at 2725 East 92nd Street but was visiting
that address on March 9, 2014, because it is the home of his
brother, James Garland. (Id. ¶ 9.) Simmons
suffers from cerebral palsy and has a noticeable speech
disorder. (Id. ¶ 8; ECF. No. 84 ¶ 8;
see generally Defs.' St., Ex. A.)
approximately 8:45 p.m. on March 9, 2014, Defendants
D'Amato, Otten, MacFarlane, and Piechocki (the
“Defendant Officers”) arrived at the residence to
execute the search warrant, accompanied by Officer Thomas
Derouin. (ECF No. 84 ¶ 11.) Defendant Officers forced
open the rear door of the house and entered the basement one
at a time, finding Simmons sitting at a table in the basement
kitchen. (Id. ¶¶ 12-13.) Simmons complied
with directives to put his hands up and did not do anything
perceived as threatening or dangerous. (Id.
¶¶ 14-16.) D'Amato initially detained Simmons
on the floor, where he lay face down, at about the same time
that Piechocki entered the basement. (Id. ¶
Simmons was detained and lying on the floor, Officer Derouin
proceeded to the stairwell and began to shout at an
individual located upstairs. (ECF No. 84 ¶¶ 21, 23;
see also, e.g., D'Amato Tr. 63:12-66:4.) Someone
from upstairs then shot Officer Derouin, who fell into the
basement kitchen wounded and collapsed near Simmons. (ECF No.
84 ¶¶ 23, 24.) Defendants Otten and MacFarlane had
moved into a separate room in the basement, albeit within
several steps of Simmons, when they heard the shot. (ECF No.
92 ¶¶ 6-10.) Otten assisted Derouin out of the
house and into a police vehicle in the alley; he had no
further involvement in Simmons's detention or arrest.
(Id. ¶¶ 14-17.)
a minute of hearing the gunshot, MacFarlane handcuffed
Simmons, who was still lying on the floor. (ECF No. 84 ¶
25; see, Pl.'s St., Ex. H, 55:8-10.) D'Amato
played no further role in Simmons's detention or arrest.
(ECF No. 92 ¶¶ 22, 23.) At his deposition,
MacFarlane offered the following justifications for
handcuffing Simmons: Simmons might have been involved in
firing a gun at Officer Derouin; Simmons could have been
“Sunny, ” the target of the search warrant; and
Simmons was then within reach of Officer Derouin's
sidearm. (See, ECF No. 84 ¶ 26; MacFarlane Tr.
83:19-84:11; ECF No. 92 ¶ 13.)
admitted that he never saw Simmons on the basement stairwell,
on the first floor, or with James Garland, who was ultimately
charged with shooting Officer Derouin. (ECF No. 84
¶¶ 28-29, 40.) At no point did MacFarlane see
anything, including weapons, in Simmons's hands.
(Id. ¶ 30.) Simmons did not disobey any police
commands prior to being handcuffed, nor did he resist or fail
to cooperate at any time. (Id. ¶ 32.) When
Simmons was lying on the basement floor in handcuffs,
MacFarlane asked him whether he knew who shot the gun;
Simmons replied that he did not. (Id. ¶ 31.)
Prior to handcuffing Simmons, MacFarlane did not check his
identification, ask his name, or inquire whether he lived at
that address, went by the name “Sunny, ” or knew
“Sunny.” (ECF No. 84 ¶ 34.)
unknown subsequently removed Simmons from the residence and
transported him to the Fifth District police station. (ECF
No. 84 ¶ 44.) MacFarlane played no role in that decision
or in executing it. (ECF No. 92 ¶¶ 18-21.) Rather,
Defendant Piechocki ordered that Simmons, along with five
other civilians found at the residence, be taken to the
police station because they were “potential suspects to
the attempted murder, aggravated battery, possession of the
handgun [found in the upstairs living room], and narcotics
sales from the home.” (Defs.' St., Ex. H, ¶
14; ECF No. 92 ¶ 32; Arrest Rep. at p.1.) Specifically,
he testified that Simmons could have been “Sunny,
” the target of the search warrant. (Piechocki Tr.
62:9-14.) Piechocki testified that Simmons, “[w]hen he
was being escorted to one of the transport cars, ”
directly informed Piechocki that he had defecated on himself.
(Piechocki Tr. 62:15-22.)
Piechocki is the only Defendant who saw narcotics at the
scene, and he noticed the small bag of crack cocaine (street
value of about $10) after deciding to transport all the
civilians to the police station. (ECF No. 84 ¶¶ 39,
41, 43; Pl.'s St., Ex. G, 77:10-78:12; Pl.'s St., Ex.
H, 89:15-22.) Piechocki had no further contact with the
civilians, including Simmons. (ECF No. 92 ¶¶
33-35.) An outside unit completed the search pursuant to the
warrant at approximately 3:00 a.m. on March 10, 2014.
(Id. ¶ 36.)
remained at the police station for approximately seventeen
(17) hours until his release at 1:45 p.m. on March 10, 2014.
(ECF No. 84 ¶ 47; ECF No. 92 ¶ 36.) Simmons's
arrest report recites a charge of possession of a controlled
substance, but no criminal complaints were ever filed against
him. (ECF No. 84 ¶ 37; ECF No. 92 ¶ 37.) The arrest
report was created for administrative purposes, with Otten
and D'Amato listed as arresting officers only because
they were affiants of the warrant. (ECF No. 92 ¶¶
38-39.) None of the Defendant Officers physically detained
Simmons at the police station. (Id. ¶ 40.)
Jurisdiction over Simmons's custody eventually passed
from Piechocki to the detectives investigating the shooting
of Officer Derouin. (Id. ¶¶ 34-35.)
before his release, at around 11:45 a.m. on March 10, Simmons
gave a voluntary statement to Detective Pat Ford and ASA
George Cannellis. (ECF No. 92 ¶ 1.) At some point prior
to giving his statement, Simmons was informed that he was
free to leave. (Id. ¶¶ 2, 3.) However, he
was in “lockup, ” meaning “in a cell”
and “under arrest, ” for approximately 14 hours -
until at least 10:36 a.m. on March 10 when he was transferred
“Out Of Lockup for A/S Interviews.” (Ford Tr.
42:15-43:1; Pl.'s St., Ex. D, at FCRL 000355.) At his
deposition, Detective Ford claimed that Simmons remained
under arrest because of possession of a controlled substance
and because his role in the shooting of Officer Derouin was
unclear. (Ford Tr. 43:2-17.) The General Progress Report,
which Chicago police detectives prepared sometime on March 9,
reported Simmons's address as 222 West 106th Place. (ECF
No. 84 ¶ 45 & Ex. I.) The record before the Court is
silent on when, if ever, Simmons was read Miranda
STANDARD OF REVIEW
judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine issue of material fact exists
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
evaluating summary judgment motions, courts must view the
facts and draw reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007). The Court does not make credibility
determinations as to whose story is more believable.
Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d
697, 704 (7th Cir. 2011). It must consider only evidence that
can be “presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2).
party seeking summary judgment bears the initial burden of
showing that there is no genuine dispute and that it is
entitled to judgment as a matter of law. Carmichael v.
Vill. of Palatine, 605 F.3d 451, 460 (7th Cir. 2010);
see also, Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If this burden is met, then the adverse party
must “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
argues that Defendants violated his civil rights, first, when
Officer D'Amato detained him at the residence; second,
when Officer MacFarlane handcuffed him there; and third, when
he was removed from the residence in handcuffs, transported
to the police station, and held behind bars overnight for
more than fourteen (14) hours. To the extent any of the
individual Defendants did not physically detain or arrest
Simmons or order his overnight stint behind bars, Plaintiff
claims they are liable on ordinary tort principles of
foreseeability. (See, e.g., Pl.'s Reply at
response, Defendants argue that Simmons's unlawful
detention claim fails for the following reasons: first,
Defendant Officers Otten, D'Amato, and MacFarlane had no
personal involvement in the decision to remove Simmons from
the residence or to hold him at the police station; second,
Defendant Piechocki had no involvement in the decision to
hold Simmons at the police station for so long; and third,
Plaintiff's arrest and entire detention were reasonable.
Alternatively, Defendant Officers argue that they are
entitled to qualified immunity.
Plaintiff's Initial Detention at the Residence
Simmons is entitled to summary judgment on his unlawful
detention claim with respect to his initial detention at the
residence depends on whether Defendant D'Amato acted
within constitutional strictures in approaching Simmons with
his gun drawn, demanding that he raise his hands, and
detaining him on the floor of the basement. If there was no
constitutional violation, then none of the other Defendant
Officers can be liable (and neither can Defendant City of
executing a search warrant are permitted, while a proper
search is conducted, to detain occupants of the premises
without probable cause or particular suspicion that an
individual is involved in criminal activity or poses a
specific danger to the officers. Michigan v.
Summers, 452 U.S. 692, 702-705 (1981); Muehler v.
Mena, 544 U.S. 93, 98 (2005). An individual subjected to
a Summers detention need not own or even reside at
the premises; it is enough that he or she is present as a
visitor when officers execute the warrant at a residence
“that a neutral magistrate had found probable cause to
believe contained evidence of illegal . . .
activities.” See, U.S. v. Pace, 898 F.2d 1218,
1239 (7th Cir. 1990) (reasoning that the defendants'
connections as visitors “to the condominium gave the
officers ‘an easily identifiable and certain
basis'” for detaining them during the search)
(quoting Summers, 452 U.S. at 703-04); cf.
Bailey v. U.S., 133 S.Ct. 1031, 1043 (2013) (Scalia, J.,
concurring) (defining “occupants” as
“persons within ‘the immediate vicinity of the
premises to be searched'”).
there is ample evidence supporting a jury finding that
Officer D'Amato's initial detention of Simmons in the
basement of the residence was reasonable. As such, the Court
denies Plaintiff's Motion as to his initial detention.
Handcuffing and Further Detention Of Plaintiff at the
Simmons is entitled to summary judgment on his unlawful
detention claim with respect to his handcuffing and further
detention at the residence turns on the reasonableness of,
first, D'Amato's brief continued detention of Simmons
after Officer Derouin was shot; and second, MacFarlane's
subsequent decision to handcuff and then continue detaining
Simmons for several minutes. If both officers acted
reasonably, then neither they nor the other Defendants can be
facts presented to the Court indicate that, within a minute
or so of the shooting of Officer Derouin, Defendant
MacFarlane assumed custody of Simmons from Defendant
D'Amato and handcuffed him for, among other reasons,
officer safety. MacFarlane continued to detain Simmons for
several minutes until the scene was secure and unknown
officers relieved him, and Piechocki later ordered
Simmons's removal in handcuffs to the police station.
Analyzing the reasonableness of Simmons's continued
detention at the residence might proceed down two paths.
first extends the Summers rationale to authorize his
detention (by D'Amato and then MacFarlane) even after the
shooting of Officer Derouin. The Court notes that use of
handcuffs is reasonable to effectuate a Summers
seizure when “the governmental interest in minimizing
the risk of harm to both officers and occupants [is] at its
maximum.” Muehler, 544 U.S. at 93-94. Such was
the government's interest immediately after the shooting
of Officer Derouin. Further, the Seventh Circuit has
analogized a detention under Summers to a
Terry stop. See, U.S. v. Burns, 37 F.3d
276, 281 (7th Cir. 1995). As such, the latitude afforded
officers conducting a Terry stop “to take such
steps as [are] reasonably necessary to protect their personal
safety and to maintain the status quo during the course of
the stop, ” U.S. v. Hensley, 469 U.S. 221, 235
(1985), would seem to apply to the situation here. See,
Graham v. Connor, 490 U.S. 386, 396 (1989) (permitting
“some degree of physical coercion” in making an
investigatory stop). Thus, to the extent the search warrant
was still being executed despite the shooting and during
Simmons's handcuffing and continued detention at the
residence, he was reasonably detained under Summers
without triggering the legal framework governing arrests.
the second reading, the shooting of Officer Derouin
immediately suspended the search pursuant to the warrant, and
the residence instead became an active crime scene such that
Summers cannot bless Simmons's continued
detention there. The Court harbors doubts about keying
reasonableness to such an artificial on/off switch where
police are presented with the kind of dangerous, fluid
scenario that confronted Defendant Officers at the residence
during the chaos immediately following the shooting. But it
nonetheless undertakes a non-Summers analysis in
light of certain undisputed facts presented to the Court that
suggest suspension of the search (i.e., a different
group of officers had to complete the search around 3:00 a.m.
on March 10, 2014, while Simmons was in lockup). Suspending
the categorical Summers rule, the Court must
determine whether it was reasonable for D'Amato to detain
Simmons after the shooting and for MacFarlane then to
handcuff and continue detaining him, and whether the force
used to conduct Simmons's seizure transformed it into an
arrest for which probable cause was required.
officers could have had individualized suspicion under
Terry v. Ohio, 392 U.S. 1 (1968), to detain and
handcuff Simmons immediately after the shooting. The
touchstone of reasonable suspicion supporting a soi-disant
Terry stop is whether “a reasonably prudent
man in the circumstances would be warranted in the belief
that his safety or that of others was in danger.”
Terry, 392 U.S. at 27 (citations omitted). Here,
immediately after Officer Derouin's shooting, his gun
came to rest within a few feet of Simmons. Although no one
disputes that Simmons had theretofore posed no threat to
police, a jury could certainly find it reasonable in these
circumstances to believe that anyone found in the house was
potentially dangerous to police and that leaving them
unrestrained near weapons posed a threat to officer safety.
And, of course, Defendant MacFarlane did not need probable
cause to handcuff Simmons, because handcuffing alone does not
ipso facto signify an arrest. Particularly in the
Seventh Circuit, the permissible scope of a Terry
stop may include the use of handcuffs. See, Jewett v.
Anders, 521 F.3d 818, 826-827 (7th Cir. 2008); U.S.
v. Stewart, 388 F.3d 1079, 1084 (citing U.S. v.
Vega, 72 F.3d 507, 515 (7th Cir. 1995)).
the officers might rely on Illinois v. Lidster, 540
U.S. 419 (2004), to justify a suspicionless detention of
Simmons. In judging the reasonableness of a suspicionless
seizure, courts must “look to ‘the gravity of the
public concerns served by the seizure, the degree to which
the seizure advances the public interest, and the severity of
the interference with individual liberty.'”
Lidster, 540 U.S. at 426-27 (quoting Brown v.
Texas,443 U.S. 47, 50 (1979)). First, the public
concerns served by Simmons's seizure were grave. Officer
Derouin had just been shot while executing the search warrant
for the residence, and testimony (undisputed for the purposes
of this Motion) establishes that Derouin's sidearm came
to rest ...