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Baskerville v. Perez

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

September 18, 2017

TOVEKA BASKERVILLE, et al., Plaintiffs,
v.
SGT. PEREZ, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          VIRGINIA M. KENDALL UNITED STATES DISTRICT COURT JUDGE.

         On April 11, 2013, based on a lead from a confidential informant, Defendant Officers executed a search warrant at an apartment located at 1419 N. Washtenaw, Chicago, Illinois. They were looking for a heroin dealer named Too Short. While executing the warrant, Defendants shot and killed Plaintiffs’ family pet, Blue, a pit bull. Defendants also recovered a bag of powder that eventually tested negative for narcotics which Plaintiffs contend, was simply cake mix that Toveka Baskerville used to make crunch cake. Defendants recovered a gun during the search. Baskerville was arrested and charged with unlawful use of a weapon by a felon and possession of a controlled substance. Finally, Defendants recovered $12,000.00 in cash from the apartment. After a bench trial, he was found not guilty. Plaintiffs allege that Defendants violated their constitutional rights and bring claims of false arrest, illegal seizures, state law claims for malicious prosecution and intentional infliction of emotional distress and for indemnification. Numerous material facts are at issue regarding what actually happened that night and therefore Defendants’ Motion for Summary Judgment is denied on all counts except for Count IV, the claim for illegal seizure of money, which is granted because Plaintiff Galarza had an adequate post-deprivation remedy and she failed to develop an argument responsive to Defendants’ Motion.

         I. Background

         On April 10, 2013, Officer Jolliff-Blake met with a confidential informant (“Doe”[1]). (Def. SOF ¶ 4.) Doe told Officer Jolliff-Blake that he had bought heroin the day before from a drug dealer who went by “To Short,” [sic] at an apartment located at 1419 N. Washtenaw, Chicago, Illinois on the day before meeting Officer Jolliff-Blake. Doe claimed to have purchased heroin approximately ten other times in the last six months from Too Short. (Def. SOF ¶4.) Doe described Too Short as “a male, black, 5’07’’, 180 lbs. 38-40 years old, shortcut, black hair, brown eyes, dark complexion.” (Search Warrant, Dkt. 63-6.) Doe did not know Too Short’s legal name. That same day, Officer Jolliff-Blake searched the Cook County Assessor’s database for the 1419 N. Washtenaw location, pulled a photograph of the property from the site, and showed it to Doe who confirmed that the photo showed the apartment building where he had bought the heroin from Too Short.. (Complaint for Search Warrant, Dkt. 63-4.) Next, Doe accompanied Officer Jolliff-Blake as he drove by the apartment and he again confirmed that it was the location where he bought heroin from Too Short. (Def. SOF ¶ 7.) During his deposition, Officer Jolliff-Blake stated that he knew that Too Short was a gang member with a criminal history. (Def. SOF ¶ 9.) Officer Jolliff-Blake testified that he learned this information for the first time when Plaintiff Baskerville told him during the execution of the search warrant, but also stated that he had “some knowledge” of it before that; he never stated where he learned this information nor whether he obtained it from Doe. (Jolliff-Blake Dep. 102:1-12)[2]. Additionally, while it is typically Officer Jolliff-Blake’s practice to do a computer search using a Chicago Police database to look for arrests that have occurred at the location that is the target of a search warrant, Officer Jolliff-Blake did not conduct such a search in this case. (Def. Resp. Pl. SOAF ¶ 8.)

         Officer Jolliff-Blake prepared a Complaint for Search Warrant and a Search Warrant permitting a search of the apartment and the seizure of any heroin, paraphernalia used in the weighing, cutting or mixing of illegal drugs, any documents showing proof of residency, and any proceeds from the sales of contraband narcotics, and any records detailing illegal drug transactions. (Def. SOF ¶¶ 10, 14.) In the affidavit, Officer Jolliff-Blake incorporated the information he obtained from Doe. He did not include any background regarding Doe’s reliability, such as whether he had ever relied on Doe before.[3] Officer Jolliff-Blake presented the warrant to an Assistant Cook County State’s Attorney, who, in turn approved and signed the documents. (Def. SOF ¶ 11.) Then at approximately 11:09 p.m. on April 10, 2013, Jolliff-Blake appeared with Doe in person before a Cook County Circuit Judge and presented the Complaint for Search Warrant and Search Warrant to the judge who had the opportunity to meet Doe, and who signed off on the warrant determining that there was probable cause to believe that evidence of drug dealing would be found at the address. (Def. SOF ¶ 12.)

         Later in the evening of April 10, Officer Jolliff-Blake held a meeting with the other Defendant Officers to brief them on their objective and to make plans for the execution of the search warrant. (Def. SOF ¶ 15.) At the debriefing meeting, the Defendants received information that there could be an aggressive dog inside the basement apartment and that there might also be children present. (Def. SOF ¶ 16.)

         A few hours after the warrant was approved, at approximately 1:14 a.m. on April 11, Sgt. Perez and Officers Jolliff-Blake, Rivera, Ortiz, and Fraction along with at least five other Chicago Police Officers, wearing masks, arrived at 1419 North Washtenaw Avenue to execute the search warrant. (Def. SOF ¶ 19.)

         At the time of the search, Lisa Galarza and her two minor children, MB and MG, lived in the 1419 North Washtenaw apartment with their pet dog, Blue. Blue, a pit bull, had been Plaintiff Galarza and MB’s pet for 11 years and Plaintiff MG’s pet his entire life. (Pl. SOAF ¶ 1.) Blue had never bit anyone nor shown any other signs of aggression. (Pl. SOAF ¶ 31.) MG and MB’s father, Toveka Baskerville, were also staying in the apartment on the night of the search. (Def. Resp. Pl. SOAF ¶ 11.)

         The parties agree that the next several moments after the officers entered the pitch-black basement apartment were chaotic. (Def. Resp. Pl.’s SOF ¶ 73.) Beyond that, the parties dispute how these moments unfolded. According to the Defendants, Officer Rivera was the first officer to enter the unlocked basement apartment door. (Def. SOF ¶ 21; Deposition of Officer Brian Ortiz, Dkt. 63-8, 24:15–16.). Officer Ortiz, who was behind Officer Rivera, had his gun in one hand and a flashlight in the other. (Def. SOF ¶ 22.) Sgt. Perez was the third Defendant to enter the basement apartment. (Def. SOF ¶ 23.) Officer Rivera and Sgt. Perez heard a dog growling from inside one of the bedrooms of the apartment. (Def. SOF ¶ 25.) As Officer Rivera moved to the middle of the living room, he and Sgt. Perez observed a dog open the door to the bedroom with his snout and continue to bark as he exited the bedroom. (Def. SOF ¶ 26.) Officer Rivera and Sgt. Perez recognized that the dog was a pit bull from its large block-like head and closely cropped ears. (Def. SOF ¶ 29.) The dog was about four to six feet away from the three officers when Officer Rivera and Sgt. Perez tried to distract the dog with their flashlights. (Def. SOF ¶ 30.) The dog stopped momentarily, and then bared its teeth, growled, and assumed a charging position by dropping the front part of his body lower than the back of his body. (Def. SOF ¶ 31.) Believing that the dog was a threat, Officer Rivera aimed and discharged his weapon at the dog as the dog lunged toward him. (Def. SOF ¶¶ 32, 34.) The dog stumbled, but then it proceeded to regain its footing and began to charge towards the officers again. (Def. SOF ¶ 35.) Officers Rivera and Ortiz, almost simultaneously, discharged their weapons at the dog, this time killing Blue. (Def. SOF ¶ 37.)

         Plaintiffs tell a different version of those moments. On the evening of the search, Baskerville, Galarza, and Blue slept in a bedroom toward the back of the home and her children were in the bedroom closest to the front door of the apartment. (Pl. SOAF ¶ 17.) Galarza woke to a loud banging in the living room. (Pl. SOAF ¶ 18.) She followed Blue into the living room just prior to the officers’ entrance. (Pl. SOAF ¶¶ 19, 21.) According to Galarza and contrary to Defendants’ version, Blue did not bark; in fact, Blue typically did not bark at all when someone was at the door. (Deposition of Lisa Galarza “Galarza Dep.”, Dkt. 63-1, 61:17–19). Also inconsistent with Defendants’ version, Galarza insists that the door to her home was locked that evening. (Pl. SOAF ¶ 20; Id. 47:9–12). As soon as they entered, Galarza remembers Defendants began shooting at Blue. (Pl. SOAF ¶ 26.) Blue did not charge at the officers but instead ran to Galarza’s side after the initial gun shots. (Pl. SOAF ¶ 27.) Defendants then shot at Blue again. (Pl. SOAF ¶ 30.) Blue fell to the floor of the living room and died. (Pl. SOAF ¶ 25.)

         At some point after the shots were fired, Defendants assert that they saw Baskerville peak his head out of the bedroom and the officers ordered him to come out to the living room. (Def. SOF ¶ 45.) Baskerville, however, testified that he was awakened by screaming and gun shots and when he awoke, he saw someone in his bedroom with a mask. (Deposition of Toveka Baskerville, “Baskerville Dep.”, Dkt. 63-13, 171:5–172:3.) Officer Jolliff-Blake believed that Baskerville was Too Short because his “appearance matched the physical description” provided by Doe. (Def. SOF ¶ 48.) But Plaintiffs point out that Baskerville is 5’2 and 150 pounds (Pl. SOAF ¶ 7); Doe told Jolliff-Baskerville that Too Short was 5’7 and 180 pounds. (See Search Warrant, Dkt. 63-6.) Baskerville also claims that he never told nor admitted to the officers he had previously been arrested, that he never said that he lived in the apartment, and that he did not confirm that he went by the nickname “Too Short.” (Affidavit of Toveka Baskerville, Dkt. 72-11, ¶¶ 4, 6, 9.) Officer Jolliff-Blake claims that Baskerville confirmed his criminal history and that his nickname was Too Short during the arrest. (Def. SOF ¶ 50.)

         After Blue was shot, the children woke up and entered the living room. (Def. SOF ¶ 51.) Defendants moved the children, Galarza, and Baskerville to the couch in the living room a few feet from Blue who was lying in a pool of blood. Officer Ortiz eventually put a sheet over Blue. (Pl. SOAF ¶ 34; Def. SOF ¶ 53.) MG, Galarza’s son who was 6 years old at the time of the search, drew a picture during his deposition of that night and included “guy with a gun pointing at us,” and also drew officers “kick[ing] Blue.” (Deposition of MG, Dkt. 63-10, 10:5–6, 10:3– 4.). MB, Galarza’s daughter, was 10 years old at the time. (Deposition of MB, Dkt. 63-11, 13:13–15). She recalled that her brother kept looking down at his hands and he was like shaking.” (Id. 44:16-17.) MB also remembers screaming to the Officers, “why did you do that to my dog[?]” (Id. at 41:5–6.) And the officers responded to her cries, “shut the f up” (Id. at 42:9–13.) Defendants, on the other hand, assert that Officer Fraction merely spoke with MB and MG about school during the search of the apartment and dispute that she used profanity toward the children. (Def. SOF ¶ 52.)

         The Bag of Powder

         Sgt. Perez took photographs inside the apartment before the actual search began because it is common practice to show what the search area looks like before any evidence is moved. (Pl. SOAF ¶ 36; Deposition of Sgt. Nelson Perez, “Perez Dep.”, Dkt. 63-9, 76:9–13; 84:18–22.) Officer Jolliff-Blake started his search in the kitchen area and then moved to Galarza’s bedroom. (Pl. SOAF ¶ 37.) Officer Jolliff-Blake found and recovered a clear plastic bag containing white powder, which he suspected was heroin, and a folded bundle of money, on top of the dresser in Galarza’s bedroom. (Def. SOF ¶ 60.) Other officers, including Sgt. Perez, searched the bedroom before Officer Jolliff-Blake and no one saw this bag. (Pl. SOAF ¶¶ 36, 39.) The bag of white powder is also not reflected on the sketch of the premises nor in any of the photographs of the apartment. (Pl. SOAF ¶¶ 57, 58, 61.) Officer Jolliff-Blake testified that he secured the bag and that although he would usually wait for a photograph to be taken of evidence recovered, he did not wait due to the “chaotic nature of the apartment.” (Deposition of Officer Michael Jolliff-Blake Dep., “Jolliff-Blake Dep.”, Dkt. 63-3, 83:24–84:8.)

         In contrast, Plaintiffs assert that Officer Jolliff-Blake took a bag of cake flour from the kitchen, brought it to the bedroom, and then lied about where he had found it. (Pl. SOAF ¶ 70.) MB testified that she saw a male officer first exit the kitchen, not the bedroom, with the bag of white powdery substance. (MB Dep., 63-11, 53:15–54:24.) During Galarza’s deposition, when she was asked where the bag of white powder came from, she testified that the only thing she could think of was that the bags came from boxes of cake mix she kept in the kitchen cabinets; when Baskerville made his famous “crunch cake,” he would use half the box and store the other half in a baggie.[4] (Galarza Dep. 150:11–152:5.) Galarza further testified that after the night the search took place, the cake mix boxes were scattered throughout the kitchen. (Id. 152:18–151:6.)

         On or around April 15, 2013, the suspect narcotics in the clear plastic bag, which had been submitted for testing to the Illinois State Police, came back negative for the presence of a controlled substance. (Def. SOF ¶ 71.) The possession of narcotics charge was eventually dropped. (Id.) It is undisputed that, ultimately, no illegal drugs or drug paraphernalia were found in the apartment. (Pl. SOAF ¶ 78.)

         The Gun

         When Officer Jolliff-Blake searched Galarza’s bedroom, he found a semi-automatic loaded handgun in the closet. (Pl. SOAF ¶¶ 50, 51.) The parties dispute where in the closet the handgun was located. Galarza testified that the gun was in one of her purses on a shelf in the closet and Defendants deny that the gun was in a purse. (Pl. SOAF ¶ 50; Def. Resp. Pl. SOAF ¶ 50). Before retrieving the gun, Officer Jolliff-Blake asked Sgt. Perez to take a photograph of the gun. (Pl. SOAF ¶ 52.) Next, Officer Jolliff-Blake went into the living room and informed Baskerville that he was under arrest for possession of the gun that he had found in the bedroom and read him his Miranda rights. (Def. SOF ¶ 57.) Defendants contend that Baskerville admitted that the gun belonged to him and that he had bought it on the street for $200. (Def. SOF ¶ 58.) But according to Plaintiffs, Baskerville did not readily admit to owning the gun. Instead, they maintain that the gun belonged to Galarza. Galarza told this to the Defendants and that the Defendants proceeded to threaten her that DCFS would take away her children if the gun was hers, so Baskerville said that the gun was his.[5] (See, e.g., Baskerville Dep. 199:22–200:3) (“They said call DCFS. We’re going to take the kids away, because they found the gun and said – I don’t know. And my kids started to cry, and I just told them it was mine.”); See also, MB Dep. at 39:13–18 (MB remembers hearing the officers threatening her mom that if she didn’t give up her gun and tell the officers where the money was that they would take the kids away.)

         The Money

         In addition to the bag of powder and the gun, Officer Rivera observed a plastic bag in a bin and upon further examination, discovered $12,000 in cash bundled together by rubber bands, which was seized by the officers. (Def. SOF ¶ 63.) The parties dispute what Baskerville stated with regard to the money; Defendants assert that he told the officers half of the money seized was his and Plaintiffs assert that he told an officer that only roughly $200 found in his bag on the floor was his. (Pl. Resp. SOF ¶ 64.) Based on their experience as law enforcement officers, Officers Rivera and Jolliff-Blake found the way in which the money was stored and bundled up in rubber bands was indicative of how drug dealers store and package their money. (Def. SOF ¶ 65.) Galarza and MB testified that they told the officers that the money found belonged to Galarza. (Pl. SOAF ¶ 68.) The $12,000.00 reflected money that Galarza had been saving from her mother and her dog walking business. (Galarza Dep. 89:920; 90:11–20.) She did not have a bank account at the time of the search. (Id. 91:24–92:2.)

         Formal Charges / Prosecution

         Ultimately, Baskerville was arrested and charged with unlawful use of a weapon by a felon and possession of a controlled substance.[6] After his arrest, Plaintiffs reached out to their condominium’s association and requested the DVDs from the surveillance cameras around the apartment complex; there was a camera in the front and back of the apartment complex. (Galarza Dep., 50:12–52:19.). Plaintiffs were able to review the footage from the night of the search but Baskerville’s criminal defense attorney misplaced the DVDs. (Galarza Dep., 126:2– 7.)

         A grand jury indicted Baskerville for being an armed habitual criminal and for unlawful use of a weapon by a felon. (Def. SOF ¶ 72.) During his grand jury testimony, Officer Jolliff-Blake testified that the search also revealed proof that Baskerville lived at the 1419 N. Washtenaw apartment. (Pl. SOAF ¶ 84.) Defendants found prescription medication bottles in Galarza’s room on top of the dresser listing Baskerville’s address as being in Monroe, Michigan. (Pl. SOAF ¶ 62.) Additionally, the bridge card found inside the apartment with Plaintiff Baskerville’s name on it says “Michigan EBT” on the front. (Pl. SOAF 64.) Baskerville testified that he moved to Michigan approximately five years[7] ago to “escape street life”[8] as well as to seek medical treatment for a health issue. (Baskerville Dep. 23:21–25:16). Travel is not easy for Baskerville due to his medical condition and in order to visit Chicago, Baskerville needed to seek permission from his doctor, as he had done for his visit during the time period of the search. (Id. 23:2–17.). Officer Jolliff-Blake was not asked and therefore did not specify what evidence he had that Baskerville lived at the Washtenaw address in his grand jury testimony.

         On November 21, 2014, Baskerville proceeded to a bench trial on the charges of armed habitual criminal and unlawful use of a weapon by a felon. (Def. SOF ¶ 73.) The judge found ...


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