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Ball v. Cortes

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

February 16, 2018

LEWIS BALL, Plaintiff,
v.
JUDITH CORTES, MARCUS DUNCAN, JOHN THILL, HUGO SALGADO, and CITY OF CHICAGO, Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Plaintiff Lewis Ball (“Ball”) brings suit against Chicago Police Officers Judith Cortes, Marcus Duncan, John Thill, and Hugo Salgado, for excessive force in violation of Ball's Fourth and Fourteenth Amendment rights as protected by 42 U.S.C. § 1983 (Count I). Ball also brings a claim for indemnification against the City of Chicago (Count II). Currently before the Court is Defendant Hugo Salgado's (“Salgado”) motion [89] for summary judgment on Count I. For the following reasons, Salgado's motion [89] is respectfully denied. This case is set for further status hearing at 9:30 a.m. on March 6, 2018.

         I. Background

         Ball's claims stem from an incident in which Ball was shot by Chicago Police Officers Judith Cortes, Marcus Duncan, John Thill, and Hugo Salgado. The shooting occurred after several of the officers chased the vehicle that Ball was driving from the area of 5400 S. Indiana to the area of 5600 S. Calumet in Chicago on December 29, 2009. [90, ¶ 1.]

         The following facts are drawn primarily from the parties' Local Rule 56.1 statements of facts and supporting exhibits [90], [92], [94], and [96]. Because Officer Salgado was not involved in the initial police chase of Ball, these statements do not focus on the facts of the chase itself and the events leading up to it and instead concentrate on the events relating to Officer Salgado's arrival at the scene and the shooting itself.[1]

         During the pursuit of his vehicle by police officers on the night of December 29, 2009, Ball drove into an alley off of Calumet, turned south, and then continued driving southbound down the sidewalk on Calumet. Ball then brought his car to a stop in the area of 5600 S. Calumet. [90 ¶ 3; 92, ¶¶ 1-2]. According to Ball, his car came to a stop after he attempted to turn his vehicle westbound through a vacant lot at the corner of 57th and Calumet, but the car became stuck in the snow. [92, ¶ 11; 90, Exhibit 1 (Ball Deposition), at 124:2-8]. Ball's car was facing south when it came to a stop. [90, ¶ 3; 90, Exhibit 1 (Ball Deposition), at 124:2-8].

         According to Defendant Officer Cortes, one of the officers involved in the chase of Ball, she parked her unmarked police vehicle opposite Ball's car and then approached Ball's car from the front (i.e., she had parked her car to the south of Ball's and was facing north). [90, ¶¶ 6-7; 90, Exhibit 4 (Cortes Deposition), at 38:13-39:2, 43:5-7.] Officers Marcus Duncan and John Thill also arrived at the scene in a police vehicle and stopped near Officer Cortes. [90, ¶ 8; 90, Exhibit 5 (Duncan Deposition), at 16:17-17:2, 24:9-21.] Officers Cortes, Duncan, and Thill thereafter fired their weapons at Ball because, they claim, Ball's vehicle began to move in the direction of Officer Cortes. [90, ¶ 12; 90, Exhibit 4 (Cortes Deposition), at 39:3-5; 90, Exhibit 5 (Duncan Deposition), at 24:16-21.] Ball denies that his vehicle was moving when the officers began firing at him. [90, ¶ 13; 90, Exhibit 1 (Ball Deposition), at 124:10-20.]

         Salgado was not directly involved in the initial chase of Ball. Instead, Salgado came to the scene after hearing a “shots fired” radio call that had gone out during an earlier portion of the chase after an officer accidentally discharged his weapon in the area of 5400 S. Indiana. [90, ¶¶ 4-5, 20; 90, Exhibit 3 (Stapleton Testimony), at 109:11-14.] Salgado was a passenger in a marked police SUV driven by his partner. The SUV drove northbound on Calumet before stopping at the scene of 5600 S. Calumet. [90, ¶ 9; 92, ¶¶ 18-19; 92, Exhibit C (Salgado Deposition), at 16:18-22.] The SUV was facing northwest when it came to a stop and was facing in that direction at the time of the shooting. [90, ¶ 10.]

         Once the SUV came to a stop, Salgado exited and stood near the passenger's side door, while his partner remained inside the vehicle. [92, ¶ 20.] Salgado testified that, as soon as he exited the SUV, he heard gunshots to the west of where he was standing. [90, ¶¶ 16, 20; 92, Exhibit C (Salgado Deposition), at 22:20-23:6.] Salgado then fired his weapon at Ball. [90, ¶ 18.] Salgado also testified at his deposition as follows regarding his discharge of his firearm:

A: I believed Mr. Ball was firing upon me.

         Q: And what led you to believe that?

A: “As I exited the vehicle, I-I can hear multiple gunshots going off, and as I turn my body towards Mr. Ball's vehicle, he's got the door open, he's got his hands pressed against his chest so I can't see his hands, and he's making a lunging motion towards me.”

[92, Exhibit C (Salgado Deposition), at 29:13-20.] Salgado did not see any other police officers at the scene before firing his weapon, and he did not see Ball's vehicle driving toward a police officer. [90, ¶ 19; 92, Exhibit C (Salgado Deposition), at 33:4-6.] According to Salgado, because of (1) the positioning of Ball's hands, (2) the manner in which Ball lunged in Salgado's direction, and (3) the earlier radio call about “shots fired” and the fact that he had just heard shots fired, Salgado believed Ball had a weapon. [90, ¶ 20; 90, Exhibit 2 (Salgado Responses to Ball's Interrogatories), ¶ 8.]

         According to Ball, as soon as his car became stuck in the snow, he raised his hands with his palms up and heard shots being fired. [92, ¶ 12.] While the officers were still shooting at him, Ball tried to get out of his car by reaching for the driver's side door with his left hand. [90, Exhibit 1 (Ball Deposition), at 142:15-21.] The shooting continued while Ball exited the car: “I get out while they was shooting. * * * I never got on chance to stand all the way up. They was shooting the whole time.” [90, Exhibit 1 (Ball Deposition), at 142:8-9, 143:2-3.] Ball also testified at his deposition that he did not know what he was doing with his right hand as he exited his car, and that “[m]y hands was up until the time they started shooting. After that, I don't remember nothing but that bullet hitting me in the head. And that-I just reached for the door after that. I reached for the door after I got hit in the head.” [90, Exhibit 1 (Ball Deposition), at 144:19-23.] Once Ball exited the car, before he could stand up, he was shot in the leg. This shot knocked him to the ground and spun him around so that, while he had previously been facing south, he ended up on the ground facing north. [92, ¶¶ 16-17; 90, Exhibit 1 (Ball Deposition), at 142:8-14, 143:14-144:3.]

         After the shooting, police personnel photographed Plaintiff's vehicle and Investigator Herbert Keeler used these photographs to generate what is known as a “Leica Scan.” [92, ¶¶ 21- 22; 92, Exhibit D (Leica Scan).] A Leica Scan is a scan of a crime scene that allows investigators to measure items at the crime scene. [92, Exhibit E (Keeler Deposition), at 10:9- 18.] The Leica Scan of Ball's vehicle demonstrates that two bullet holes entered the driver's side door of Ball's vehicle. [92, ¶ 23.] The parties dispute whether the Leica Scan also demonstrates the exact trajectory of these bullets. Ball maintains that the bullets entered his vehicle from a northwest angle (and therefore came from the direction in which Salgado was standing). [92, ¶¶ 21, 23.]

         As a result of the incident, Ball was convicted of a crime relating to fleeing from the police. [90, ¶ 2.] Ball thereafter brought this lawsuit on December 9, 2011, and filed an amended complaint [16] on March 21, 2012. Ball alleges in Count I of his amended complaint that Officer Salgado unreasonably used deadly force against him “[w]ithout just cause or just provocation” when Salgado discharged his weapon at Ball. [16, ¶ 10.] The Court stayed the action in April 2012 while Ball pursued an appeal of his criminal conviction in state court. ...


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