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Price v. City of Chicago

Court of Appeals of Illinois, First District, First Division

February 20, 2018

PRISCILLA PRICE, Independent Administrator of the Estate of Niko Husband, Deceased, Plaintiff-Appellant,
THE CITY OF CHICAGO, a Municipal Corporation, and MARCO PROANO, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 11 L 10162 Honorable Elizabeth M. Budzinski Judge Presiding

          JUSTICE SIMON delivered the judgment of the court, with opinion. Justices Harris and Mikva concurred in the judgment and opinion.


          SIMON, JUSTICE

         ¶ 1 Niko Husband was shot and killed by Chicago police officer Marco Proano. This case was filed by the administrator of Husband's estate seeking damages for wrongful death. Officer Proano and the City of Chicago countered that the shooting was justified under Illinois law. The jury returned a general verdict against the defendants, and in favor of plaintiff, for $3.5 million. The jury also answered two special interrogatories.

         ¶ 2 The first special interrogatory asked whether Officer Proano "reasonably believe[d] that Niko Husband's actions placed him or his fellow officers in imminent threat of death or serious bodily harm" when he shot Husband. The jury answered "Yes." The second special interrogatory asked whether Officer Proano's "conduct in shooting Niko Husband [was] willful and wanton." T

         ¶ 3 he jury answered "Yes." Finding that the answer to the first special interrogatory controlled the verdict, the trial court entered a judgment of no liability in favor of defendants. We reverse.

         ¶ 4 BACKGROUND

         ¶ 5 On July 17, 2011, nineteen-year-old Niko Husband went to a dance party at 80th Street and Ashland Avenue with his friends. The organizers of the event rented a fraternal lodge and provided security. Attendees were patted down by security as they entered the party. There was no alcohol served. A disc jockey played music and everyone was dancing. But the party ended abruptly when police arrived and announced to the crowd that the party was over.

         ¶ 6 Chicago Police Officer Marco Proano and his team had received a radio call that a man with an AK-47 was running towards 80th Street and Ashland Avenue-the same location as the dance party. The radio call identified the suspect with the AK-47 as a black male with dreadlocks wearing a white shirt and white or khaki shorts. The officers approached the party and told the security guards that they were looking for a man with an AK-47. The security guards told the officers that the suspect was not inside because they patted down everyone prior to entry. The police ended the party and searched partygoers as they exited.

         ¶ 7 As Husband exited the party, he was positioned immediately behind and had his arms around a female friend, Keoni Jackson. Husband was wearing a bright green T-shirt and blue jeans. Officer Proano testified that he knew Husband did not meet the description of the suspect from the radio call. However, in Officer Proano's judgment and the judgment of other officers, Jackson appeared distressed or panicked by Husband's contact. The officers instructed Husband to take his arms off Jackson and to let her go. Husband did not obey the order. Officer Whigham testified that Husband shoved him and refused to let go of Jackson. Officers threw both Husband and Jackson against the wall and started to forcefully separate them. A struggle ensued.

         ¶ 8 Officer Proano testified that when he put his arm between Husband and Jackson, he felt a gun around Husband's waist area and then placed his left hand directly on the gun. Husband's T-shirt was covering the gun. Officer Proano testified that he could not pull the weapon from Husband's waistband due to the struggle but yelled out "gun, gun, gun, he's got a gun" to alert his fellow officers. Officer Whigham used his Taser three or four times on Husband causing him to the fall to the floor on his back. At this time, Officers Proano, Whigham, and Piper were directly involved in the struggle with four other officers surrounding them in close proximity.

         ¶ 9 Crouched over Husband, the three officers attempted to gain control of his arms to prevent Husband from reaching into his waistband. Officers testified that Husband flailed violently and uncontrollably. The officers were unable to subdue Husband.

         ¶ 10 Officer Proano testified that he saw Husband prop himself up with his elbows and reach into his waistband. Officer Proano testified that Husband then pulled out a gun and pointed it at Officer Piper, so he shot Husband three times in the chest. All three officers involved in the struggle testified that they believed Husband was going to shoot Officer Piper before being shot by Officer Proano. Husband died within seconds.

         ¶ 11 The testimony of officers described the scene as chaotic and difficult to control. Officer Proano testified that the number of people at the scene was in the hundreds. As the struggle between Husband and the officers intensified, so did the officers' concerns about crowd control. Officers described being surrounded by the crowd and even believed that the crowd might try to get involved in the struggle with Husband.

         ¶ 12 The issue of whether Husband actually had a gun was hotly contested by plaintiff at trial. The three officers attempting to subdue Husband claim that they saw him pull a gun and point it at Officer Piper. The other four officers on the scene did not see Husband with a weapon. Jackson and Husband's friend testified that he did not have a gun and that they did not see a gun in Husband's waistband as he danced at the party with his shirt off.

         ¶ 13 Plaintiff questioned the chain of custody of the gun that Husband was accused of possessing the night he died. After Husband was shot, Officer Piper claims to have taken the gun from Husband's hand and made contact with his sergeant, Phillip Orlando. Officer Piper told Sergeant Orlando that Husband had "just pointed a gun at me." Sergeant Orlando testified that he saw Officer Piper holding a gun and took the gun from him because he wanted Officer Piper to have some time to relax. Sergeant Orlando did not see the shooting.

         ¶ 14 Sergeant Orlando then testified that he placed the gun taken from Officer Piper on the driver seat of his vehicle. Sergeant Orlando ordered Officer Proano to stay with the vehicle. Seeing the gun sitting on the driver's seat, Officer Proano testified that he picked up and put the gun in his waistband because he was afraid someone might break into the car and take the gun. Officer Proano testified that he gave the weapon to a police forensic investigator about an hour later.

         ¶ 15 The recovered gun was a semi-automatic with a single round in the chamber. No physical evidence tied the gun to Husband. The only evidence that Husband had a gun was the testimony of the three officers who attempted to subdue him. A postmortem examination revealed that Husband did not have any drugs or alcohol in his system at the time of the shooting. An internal police investigation of the shooting did not contradict, nor did it confirm, the accounts of whether Husband pointed a gun at a police officer.

         ¶ 16 Plaintiff, as the administrator of Husband's estate, filed this wrongful death case. Plaintiff presented expert testimony analyzing the police officers' conduct in an attempt to demonstrate that the officers' actions were inconsistent with Husband having a gun. The expert testimony also covered the way in which the police officers handled the weapon taken from Husband immediately ...

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