United States District Court, N.D. Illinois, Eastern Division
RICKEY CHILDS, individually and as Administrator of the Estate of RICKEY CHILDS, JR., deceased, Plaintiff,
CITY OF CHICAGO, et al., Defendants.
MEMORANDUM OPINION AND ORDER
B. Gottschall United States District Judge.
night of Sunday, October 28, 2012, Chicago police officer
Pablo Mariano (“Mariano”), who was then on duty,
shot sixteen-year-old Rickey Childs, Jr.
(“Childs”); the bullet struck Childs in the back
of the head. He was pronounced dead at a hospital the next
day. Defs.' Joint L.R. 56.1 State [sic] of Uncontested
Facts (“Defs.' SOF”) ¶ 2, ECF No. 69;
see also Defs.' Ans. to 1st Am. Compl. ¶ 8,
ECF No. 12 (admitting Childs was pronounced dead at 9:51 p.m.
on October 29, 2012.) In this lawsuit, his father, plaintiff
Rickey Childs, Sr., (“Childs, Sr.”) claims
Mariano used excessive force. Childs, Sr., brings claims on
his own behalf and as the administrator of Childs'
estate. 1st Am. Compl. ¶ 2, ECF No. 6. In addition to
the § 1983 claim against Mariano, the complaint asserts
conspiracy claims under § 1983 and Illinois law; a
wrongful death claim under Illinois law; a claim under the
Illinois survival statute, 755 ILCS 5/27-6; and a respondeat
superior count against the City of Chicago (“the
defendants move for summary judgment. They argue that the
undisputed evidence shows that Mariano's use of deadly
force was objectively reasonable. Finding material factual
disputes over whether Mariano had information from which he
could conclude that Childs had a weapon and whether Childs
was fleeing, the court denies summary judgment on all but the
plaintiff's conspiracy claims.
FACTS AND SUMMARY JUDGMENT EVIDENCE
had never seen Childs before the night of October 28, 2012.
Pl.'s SOF ¶¶ 48- 49, ECF No. 80. That night,
two black men wearing ski masks attempted to rob an
individual referred to here as C.M. near 8223 S. Maryland Street
in Chicago, Illinois. Pl.'s SOF ¶ 1. C.M. could not
see their faces. Pl.'s SOF ¶ 2.
and another police officer, Robert Gonzalez
(“Gonzalez”),  were patrolling the area in a marked
police car. Pl.'s SOF ¶ 3; Defs.' SOF ¶ 7;
Mariano Dep. 29:20-30:10. As Mariano and Gonzalez drove north
on Maryland, C.M. flagged them down. See Defs.' SOF
¶¶ 7-8; Pl.'s SOF ¶ 7. He told Mariano and
Gonzalez that an attempted robbery had occurred. See
Defs.' Reply to Pl.'s Resp. to Defs.' SOF ¶
9, ECF No. 83.
parties disagree about exactly what else C.M. told Mariano
and Gonzalez. C.M. stated that he “pointed towards the
way the incident had happened at [sic].” Defs.' Ex. C
at 9, ECF No. 70. Mariano testified that C.M. pointed to one
of two men who were then standing down the street and said
something like, “The guy over there with the black
hoodie has a gun, he tried to rob me.” Mariano Dep.
34:10-19. One of the officers, according to C.M.'s
statement, “had seen one of the guys trying to rob
[him] running and [the officer] started chasing him.”
C.M. Statement 6-7. Viewed in a light favorable to the
plaintiff, C.M.'s testimony does not make clear whether
C.M. communicated to Mariano or Gonzalez that the person who
ran was the person who attempted to rob C.M. or whether
Gonzalez assumed as much from the fact that the person
wearing the black hoodie began to run. See Id. More
importantly, a reasonable jury could find the following fact
from C.M.'s version of the encounter: C.M. never told
Mariano and Gonzalez that the person who robbed him was
armed. Compare C.M. Statement at 6, and ECF
No. 83 at 4 ¶ 9 (stating that it is undisputed that
“C.M. told the officers he had been robbed and pointed
them in a particular direction”); with Mariano
and Gonzalez returned to their police car and began driving
toward the men at whom C.M. had pointed. See
Pl.'s SOF ¶ 12. As the car approached, one of the
men ran, and Gonzalez got out of the car and gave chase on
foot. See id.; Defs.' SOF ¶ 12.
described the person who ran as wearing a black hoodie.
See Defs.' SOF ¶ 9. Mariano
testified that he saw the person in the black hoodie
“clinching” the right side of his waistband
before he began running; based on that observation, Mariano
assumed that he had a gun. Mariano Dep. 39:15-23.
saw Gonzalez pursue the person in the black hoodie down a
gangway. See Defs.' Resp. to Pl.'s
SOF at 26 ¶ 17 (stating that Mariano's testimony
does not clarify whether, as the plaintiff contends, the
person turned east into the gangway). The court pauses here
to note that Mariano did not see Gonzalez for the remainder
of the chase and did not know where he was. As far as the
record shows, Mariano is the only living eyewitness to the
subsequent events of the chase. See Defs.' SOF
¶ 24-25, 32-35 (no other officer was present; Mariano
does not recall anyone else in the gangway where he shot
Childs; and the plaintiff's other witnesses were not
then drove north to 82nd Street and turned right. Pl.'s
SOF ¶ 18. While travelling east on 82nd Street, Mariano
saw a person running north (towards 82nd Street) in a
north-south alley between Maryland and Drexel. Id.
¶ 19. Mariano thought that this was the person Gonzalez
had been pursuing, but he does not know how that person got
from the gangway to the alley. Id. SOF ¶ 20.
Mariano saw that this person was holding his right waistband;
Mariano again assumed the person had a gun. Id.
¶ 21; Mariano Dep. 43:6-44:2. The person reached 82nd
Street, turned right (east), and ran along 82nd toward
Drexel; Mariano pursued him in his police car. Pl.'s SOF
¶¶ 23-24. The person Mariano was following crossed
Drexel and turned right, doubling back south on the east side
of Drexel. Id. ¶ 26. Mariano followed, and he
saw the person turn left (east) into a gangway. See
Id. ¶ 27. This is not the gangway in which Childs
got out of his car to pursue the individual into the gangway.
See Pl.'s SOF ¶¶ 28-29. As he
approached the gangway entrance, Mariano used a “cut
the pie” tactic; he intended to use the building's
corner to shield him as a precaution. See Id.
testified that he saw the person he was chasing point a gun
at him as he was performing the “cut the pie”
maneuver. Pl.'s SOF ¶ 31; Mariano Dep. 46:13-19.
Mariano further testified that he heard and smelled a
gunshot, but he did not see the person he was chasing fire.
Mariano Dep. 46:20-47:8, 51:9-12. The person Mariano was
following then ran east into the gangway. See
Pl.'s SOF ¶¶ 32, 34. Mariano returned to his
car, drove south to 83rd Street, and turned left (east) on
83rd, now traveling in the same direction he had seen the
person he was chasing run. See Id. ¶¶
34-35. He turned left at the next intersection and eventually
entered the north entrance on 82nd Street of the north-south
alley between Drexel and Ingleside. See Defs.'
Resp. to Pl.'s SOF at 32 ¶ 37 (stating that the
exact sequence of Mariano's turns is not clear from his
testimony, but that it is clear that this is where he
got out of his car and started to walk south in the alley.
Pl.'s SOF ¶ 38. He saw an individual he believed to
be the person he was pursuing jump a fence into an apparently
east-west gangway on the alley's west side. Id.
¶¶ 39-40. This person was Childs. Childs began
running west in the gangway toward Drexel. Id.
¶ 41. Mariano began climbing a fence between the alley
and the gangway to continue the pursuit. See Id.
¶ 43. Mariano testified as follows about what happened
As I'm trying to jump the fence -- I am getting to the
top of the fence is [sic] when he stopped quickly, turned and
looked at me shoulder to shoulder. I, um, was scared for my
life that he might shoot me again. So I jumped off the fence,
pulled my gun out, aimed at him and shot him.
Dep. 65:4-9. Childs' post mortem examination report
states that he sustained a gunshot wound to the back of his
head, 3.5” left of the posterior midline. Pl.'s SOF
¶ 50; Plaintiff's Ex. A at 2.
revolver was subsequently recovered in the first gangway,
i.e., the one in which, according to Mariano's testimony,
Childs shot at him, not in the gangway where Mariano shot
Childs. See Pl.'s SOF ¶ 46; Defs.' SOF
¶ 26; Mariano Dep. 69:5-11. That is, the parties cite no
summary judgment evidence suggesting that a gun or other
weapon was found on or near Childs' body. Ibid.
Illinois State Police (“ISP”) scientist tested
Childs' hands for gunshot residue. Pl.'s SOF ¶