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Banks v. City of Chicago

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

December 15, 2017

MICHAEL BANKS, Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         Plaintiff Michael Banks (“Plaintiff”) brings this action against Defendants the City of Chicago (“City”) and Chicago Police Officers Bolton (“Bolton”), Orlando (“Orlando”), and Kubik (“Kubik”) pursuant to 42 U.S.C. § 1983 and Illinois state law for alleged violations of his civil rights stemming from his 2013 arrest, prosecution, and acquittal for delivery of a controlled substance. This matter is before the Court on Defendants' motion for summary judgment [51]. For the reasons explained below, the Court denies Defendants' motion [51]. This case is set for status hearing on January 11, 2018 at 9:00 a.m.

         I. Background

         The Court takes the relevant facts from the parties' Local Rule 56.1 statements and exhibits thereto, [53], [62], [65]. The following facts are undisputed unless otherwise noted.

         On September 9, 2013, Officers Bolton, Orlando, and Kubik were working as Chicago police officers on a narcotics team. Bolton was a surveillance officer and Orlando and Kubik were enforcement officers. Bolton was conducting surveillance near the intersection of Madison and Kildare. See [62] at 2; [65] at 2. He was sitting in a vehicle and communicating with the rest of the narcotics team using a push-to-talk radio.

         Bolton testified that he observed a transaction between a man who was wearing a “white tank top” (see [53-3] at 25), whom he later identified as Plaintiff, and another man, later identified as Stanford Clacks (“Clacks”). Bolton testified that he observed Clacks approach Plaintiff and have a short conversation. Bolton testified that Plaintiff then crossed the street, reached down by a tree, picked up a brown paper bag from the ground near the tree, crossed back over the street to Clacks, reached into the brown paper bag, removed an item, and gave something to Clacks in exchange for money. Bolton testified that he could not see what Plaintiff gave Clacks because Plaintiff had a closed fist. Orlando testified that Bolton told him that he observed a “hand-to-hand” transaction. See [62] at 3. Orlando also testified that the transaction took place in an area known for narcotics transactions.

         Plaintiff disputes all of Bolton's observation of the alleged transaction between Plaintiff and Clacks. Plaintiff testified at his deposition that he did not sell drugs to Clacks. According to Plaintiff, he was selling loose cigarettes near the intersection of Madison and Kildare on September 9, 2013. Plaintiff testified that Clacks approached him to buy two cigarettes. Plaintiff testified that Clacks handed him a dollar bill and he allowed Clacks to remove two cigarettes from a pack of cigarettes. It is undisputed that this transaction was out in the open; however, Defendants dispute that the transaction was for cigarettes. Plaintiff states in a declaration (and Defendants dispute) that between the time he first spoke to Clacks and the time he was arrested, Plaintiff stayed in the same position on the sidewalk and did not cross the street. According to Plaintiff, he never reached down by a tree; never picked up a brown paper bag from the ground near a tree; never reached into a brown paper bag or removed an item from a brown paper bag; and never gave anything that he had taken out of a brown paper bag to another person.

         Bolton radioed the rest of his narcotics team and told them that he had observed a hand-to-hand transaction that he believed to be narcotics transaction. Bolton described both of the individuals that engaged in the transaction. He described the seller as wearing a white tank top. [62] at 5 (citing [53-3] at 25).

         Orlando and Kubik were in a car about two blocks away. They drove to where Bolton saw the transaction, arriving about two minutes later. Bolton testified at trial that he “observed [Plaintiff] look in the direction of the approaching enforcement vehicle” and “toss[] [a] brown paper bag to the ground.” [53-3] at 18. Plaintiff testified that he never tossed a brown paper bag onto the ground. Police officers never recovered the brown paper bag that Bolton observed.

         Plaintiff testified that Orlando and Kubik arrived about ten seconds after Plaintiff sold the cigarettes to Clacks; Defendants dispute this timing. See [53-5] at 15. When Orlando and Kubik arrived they got out of their vehicle and detained Plaintiff and Clacks. Plaintiff was searched and placed in handcuffs. The parties dispute whether Plaintiff was placed under arrest at this time, or later. They also dispute the extent of the officers' search; Plaintiff asserts that during the initial search, Orlando pulled on his shorts and underwear, looked into his crotch area, and was able to see his genitals.

         According to Plaintiff, seconds after Orlando and Kubik arrived, two other officers pulled up and then all four officers ran around the corner, returning 15 to 20 seconds later. Defendants dispute that this occurred. Kubik searched Clacks and found five packets of a substance suspected to be heroin. Plaintiff and Clacks were officially placed under arrest. Later, Plaintiff was searched again and found to be in possession of $89 in cash. See [62] at 8.

         Orlando testified at his deposition that the only reason he arrested Plaintiff was Kubik's statement that she found drugs on Clacks and Bolton's statement that he observed Plaintiff sell drugs to Clacks. Orlando also testified that Plaintiff did not have cigarettes on his person at the time of arrest, that he did not see Plaintiff with cigarettes, and that he did not ever know that Plaintiff had cigarettes on him.

         Orlando completed and signed a Complaint for Preliminary Examination charging Plaintiff with delivery of a controlled substance. Orlando, Kubik, and Bolton completed police reports stating that Plaintiff was the seller in the drug transaction witnessed by Bolton. No Defendant testified at Plaintiff's bond hearing. Orlando testified at Plaintiff's preliminary hearing, at which probable cause was found to continue Plaintiff's detention. Plaintiff was continuously detained from the date of his arrest, September 9, 2013, through his trial in January 2015.

         At Plaintiff's bench trial, Bolton testified that he observed an unknown “female that was … talking to [Plaintiff] earlier walk eastbound and reach down and what I believe to pick up the paper bag and continue[] to walk eastbound.” [53-3] at 20. Orlando testified that while Plaintiff and Clacks were being detained, there “was contact of a Female that was walking by in our vicinity and grabbing a small brown bag.” Id. at 36. The police reports contain no mention of the alleged unknown female. At the conclusion of the trial, Plaintiff was found not guilty and released from detention.

         Plaintiff brings suit against Bolton, Orlando, Kubik, and the City pursuant to 42 U.S.C. § 1983 for violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. See [1]. Plaintiff alleges that he did not sell drugs to Clacks and did not undertake any acts that could have caused a reasonable police officer to believe that he had engaged in any wrongdoing. Plaintiff further alleges that Bolton, Orlando, and Kubik fabricated evidence, causing him to be held in custody and prosecuted for selling drugs. Specifically, Plaintiff alleges that the Defendant officers 1) prepared police reports with the material false statement that they had observed Plaintiff engage in a suspected drug transaction with Clacks; and 2) concocted a false story that they were unable to recover the paper bag from which Plaintiff removed drugs, because an ...


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