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Banks v. Bay

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

July 19, 2017

JOE BANKS, JR., Plaintiff,
v.
CHICAGO POLICE OFFICER ROGER BAY Defendants.

          DEFENDANT BAY'S RULE 50 MOTION

          CHANG, JUDGE.

         Defendant Chicago Police Officer Roger Bay (“Defendant Bay”), by and through one of his attorneys, Raoul Vertick Mowatt, Assistant Corporation Counsel, for their motion for judgment as a matter of law pursuant to Rule 50(a)(2) of the Federal Rules of Civil Procedure, state as follows:

         Under Rule 50(a), a court may “enter judgment against a party who has been fully heard on an issue during a jury trial if a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 376 (7th Cir. 2011) (internal citation omitted). This Honorable Court should grant judgment as a matter of law in favor of Defendant Bay on Plaintiff's claim for excessive force, because under either party's theory of what happened, Plaintiff has failed to establish a legally sufficient evidentiary basis for the jury to find in his favor on that issue. Similarly, Plaintiff has failed to establish a legally sufficient evidentiary basis for the jury to find in his favor on Plaintiff's malicious prosecution claim.

         I. Plaintiff Has Failed to Prove Potential Liability On His Excessive Force Claim

         The parties presented two starkly different versions of the events of July 25, 2011. Unfortunately for Plaintiff, he cannot prevail as to excessive force under either version.

         Defendant Bay's account of that night was that he was one of six officers pursuing Plaintiff when Plaintiff pointed a gun at him near the corner of Ohio and Sawyer. Plaintiff's actions put Defendant Bay in fear for his life, prompting him to shoot three times, hitting Plaintiff twice. Defendant Bay's account was supported by testimony from Officer Nenad Dragojlevich and Carmen Hernandez, in addition to his own. It is beyond reasonable dispute that if Defendant Bay's account is true, the force he used was reasonable.

         However, Plaintiff offered a different story. Plaintiffs story is that he was innocently riding a bike near the intersection of Ohio and Sawyer when a dark-skinned African-American man dressed in a dark shirt ran past him. Plaintiffs witness Eunice Hunt testified that she had seen this man running and knew that he had done something and that the police were chasing him. Plaintiffs counsel in his opening statements told this jury that their theory of the case was that the officers were chasing an African-American man in black shorts, not tan shorts like Plaintiff had, and accidentally hit Plaintiff when attempting to shoot the mystery man in black shorts.

         Plaintiffs story means that he has pled himself out of court on the excessive force claim. All claims that a law enforcement officer has used excessive force during an arrest or seizure are analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989). Case law establishes that a Fourth Amendment seizure only occurs when there is a “governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596-7 (1989)(emphasis in the original). “[A] Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby) nor even when there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is governmental termination of freedom of movement through means intentionally applied.” County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998). Therefore, when a police officer fires his gun at a fleeing suspect and the bullet inadvertently strikes an innocent bystander, there has been no Fourth Amendment seizure. Warfield v. City of Chicago, 565 F.Supp.2d 948, 963 (N.D.Ill. July 16, 2008)(Castillo, J.)(citing Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000)). See also Brandon v. Village of Maywood, 157 F.Supp.2d 917, 924-5 (N.D.Ill. August 3, 2001)(Bucklo, J)

         Because Plaintiff cannot prevail under either set of facts presented during his case in chief, Defendant Bay is entitled to judgment in his favor pursuant to Rule 50.

         In the alternative, Defendant Bay requests a supplemental jury instruction summarizing the above-cited case law.

         II. Plaintiff Has Failed to Prove Liability on His Malicious Prosecution Claim

         To prevail on a malicious prosecution claim, a plaintiff must show (1) the criminal proceedings were commenced by the defendants; (2) those proceedings terminated in favor of the plaintiff; (3) there was an absence of probable cause for the proceedings; (4) the defendants acted with malice; and (5) the plaintiff suffered damages as a result. Swick v. Liautaud, 662 N.E.2d 1238 (Ill.1996)). If any of these elements is absent, a plaintiff is barred from pursuing the claim. Id. (citing Joiner v. Benton Cmty. Bank, 411 N.E.2d 229, 232 (1980)(quoting Ritchey v. Maksin (1978), 376 N.E.2d 991.))

         In the case at bar, it is undisputed that Plaintiff had a gun at the time of the incident. Defendant Bay (and two other witnesses, Officers Dragojlevich and Hernandez) testified that Plaintiff pointed that gun at Defendant Bay. Plaintiff testified he never pointed that gun at Defendant Bay. We must accept Plaintiff's testimony as true for the purpose of this motion.

         Even so, Defendant Bay's assessment of the situation is at worst, a mistake, given the undisputed evidence that Plaintiff was armed. “A mistake or error not amounting to gross negligence will not affect the question of probable cause in an action for malicious prosecution where there is the honest belief by the complainant at the time of subscribing a criminal complaint that the accused is probably guilty of the offense. Mangus v. Cock Robin Ice Crime Co., Inc., 52 Ill.App.3d 110, 116. (1st Dist. 1977). ...


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