United States District Court, N.D. Illinois, Eastern Division
MARCUS D. TORRY, LATRELL Q. GOSS, and WILLIAM I. ROBERTS, Plaintiffs,
CITY OF CHICAGO, et al., Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY UNITED STATES DISTRICT JUDGE
case arises from a 2014 traffic stop that Plaintiffs claim
violated their Fourth and Fourteenth Amendment rights.
Plaintiffs Marcus Torry, Latrell Goss, and William Roberts
sued Defendant Officers and the City of Chicago in September
2015, , alleging the following claims: (I) Illegal Stop,
under 42 U.S.C. § 1983; (II) False Arrest/Illegal
Detention, under § 1983; (III) Assault; (IV) Battery;
(V) Illegal Search and Seizure, under § 1983; (VI)
Failure to Intervene, under § 1983; (VII) Conspiracy to
Interfere with Plaintiffs' Civil Rights, in violation of
42 U.S.C. § 1985; and (VII) Conspiracy to Deprive
Plaintiffs of Civil Rights, under § 1983, .
parties cross-filed for summary judgment. [63, 66]. For the
reasons explained below, this Court denies Plaintiffs'
motion for summary judgment, , and partially grants and
partially denies Defendants' motion for summary judgment,
Local Rule 56.1 and Evidentiary Rules
September 23, 2014, Officers Jacek Leja and Justin Raether
and Sergeant Robert King (Defendant Officers) stopped
Plaintiffs' car on the 2900 block of West Polk Street in
Chicago. PSOF ¶¶15-18, 21; DSOF ¶
The parties dispute many of the circumstances surrounding the
stop and this Court notes those disagreements in its
discussion of the incident.
parties' disputes extend to almost the entirety of each
other's statements of fact. See generally R.
DSOF; R. PSOF. This Court has broad discretion to enforce the
local rules governing summary judgment motions. See,
e.g., Petty v. City of Chicago, 754 F.3d 416,
420 (7th Cir. 2014). As such, simply denying a fact that has
evidentiary support “does not transform it into a
disputed issue of fact sufficient to survive a motion for
summary judgment, ” and this Court disregards any
insufficient denials. Roberts v. Advocate Health
Care, 119 F.Supp.3d 852, 854 (N.D. Ill. 2015) (citation
omitted); see also Malec v. Sanford, 191 F.R.D. 581,
584 (N.D. Ill. 2000). Likewise, “purely argumentative
denials, ” legal conclusions, and unsupported general
denials do not belong in Local Rule 56.1 statements, and this
Court disregards them as well. See, e.g., R. DSOF
¶ 14; see also Phillips v. Quality Terminal Servs.,
LLC, 855 F.Supp.2d 764, 771 (N.D. Ill. 2012);
Malec, 191 F.R.D. at 584; Bordelon v. Chi. Sch.
Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000)
(applying Rule 56 under its prior designation as Rule 12).
Finally, this Court finds no merit in either parties'
claims that their opponents' statements of fact are
irrelevant, see e.g., R. DSOF ¶ 11, R. PSOF
¶ 30, because the facts bear directly on the outcome of
this case, see Fed. R. Evid. 401.
Court further finds the videos of the stop recorded by Torry
and Goss, as well as the statements within Torry's video,
constitute admissible evidence for purposes of summary
judgment. See [60-7]; [60-8]. Although Torry and
Goss recorded the videos and submitted them as joint exhibits
with Defendants, Plaintiffs now appear to challenge the video
evidence on the grounds of authenticity and completeness.
See, e.g., R. DSOF ¶ 20. But the parties
already agreed to the tapes' authenticity in their
statements of fact, and thus undermine any challenges to the
admissibility of the videos at this stage. See R.
PSOF ¶¶ 9, 10; Fed.R.Evid. 901(a); Smith v.
City of Chicago, 242 F.3d 737, 741-42 (7th Cir. 2001).
completeness, Plaintiffs contend that “there is no
video of the entire incident, and no video of the incident
before plaintiffs were pulled over by defendants.” R.
DSOF ¶ 20. Without citation to any relevant portions of
the record, this insufficient factual denial, see
Malec, 191 F.R.D. at 584, fails to show that any portion
of the video has been withheld, or explain how in fairness
some other evidence ought to be considered at the same time
as the video evidence. Thus, this Court has nothing further
to consider under Federal Rule of Evidence 106, and
Plaintiffs fail to make a proper showing under the
completeness doctrine or otherwise call the video's
accuracy into question. See United States v. Cejas,
761 F.3d 717, 724-25 (7th Cir. 2014) (affirming admissibility
of video absent any “sound reason to doubt the
the statements audible on Torry's video, [60-7],
Plaintiffs offer a general objection to all such statements
as inadmissible hearsay, R. DSOF ¶ 20;  at 4. Where
Defendants offer Plaintiffs' statements as evidence, and
vice versa, those statements are admissible as statements of
a party-opponent. See Fed. R. Evid. 801(d)(2). Where
Defendants offer their own statements, those made in the
context of King's heated discussions with Torry are
admissible on multiple grounds, including as present sense
impressions or excited utterances. See id. 803(1)
this Court finds that any remaining statements not covered by
these provisions meet the requirements for admissibility
under the completeness doctrine, or remain admissible for
non-hearsay purposes. See Id. 106; United States
v. Haddad, 10 F.3d 1252, 1258-1259 (7th Cir. 1993).
Torry's video is just over 13 minutes long; it depicts
the entirety of the stop after King approached
Plaintiffs' car. See generally [60-7].
Plaintiffs challenge the legality of the stop from start to
finish. See generally ; . Since determining
the reasonableness of an investigatory stop requires a
context-dependent inquiry, in which courts assess the
justification for, duration, and manner of the stop “in
light of the surrounding circumstances, ” see Matz
v. Klotka, 769 F.3d 517, 523-25 (7th Cir. 2014), this
Court finds that admitting any additional statements in the
video: (1) explains the previously admitted statements; (2)
contextualizes them; (3) avoids misleading the trier of fact;
and (4) ensures “a fair and impartial understanding of
all the evidence, ” see United States v. Doxy,
225 F. App'x 400, 402-03 (7th Cir. 2007) (citing
United States v. Velasco, 953 F.2d 1467, 1475 (7th
Court also rejects Plaintiffs' assertion that Defendants
cannot create a genuine issue of material fact because they
no longer independently recall the stop. See, e.g.,
 at 4. This argument ignores the documentary and video
evidence related to the circumstances of the stop, as well as
Defendants' deposition testimony about their general
recollections of their tasks, duties, and knowledge at the
time of the stop. See, e.g., [60-4]; [61-2]; [65-1].
Absent any meaningful and specific objection to the exhibits,
this Court may properly consider such admissible evidence at
summary judgment. See, e.g., Gunville v. Walker, 583
F.3d 979, 985 (7th Cir. 2009).
this Court may take judicial notice of Defendants' Google
Maps printout, [65-1] at 13, which shows distances and
locations of events relevant to the stop, see Cloe v.
City of Indianapolis, 712 F.3d 1171, 177 n.3 (7th Cir.
2013), overruled on other grounds by Ortiz v. Werner
Enters., Inc., 864 F.3d 760 (7th Cir. 2016). Absent any
showing calling this exhibit's accuracy into
question-which Plaintiffs do not offer, see, e.g.,
R. DSOF ¶ 14-this Court may properly consider such
evidence at summary judgment, see Fed. R. Evid.
day of the stop, Torry resided at 2442 West Polk Street.
[60-1] at 4. While at home with Roberts, Torry received a
call from Goss-Torry's brother- whose car had broken down
near the intersection of West Polk and South California
Avenue. Id. at 6; PSOF ¶ 14. Around noon,
Roberts and Torry picked up Goss, with Torry driving his
mother's gray Ford Fusion. PSOF ¶¶ 14-15.
Plaintiffs then drove west along West Polk to South Kedzie
Avenue, where they turned south to take Goss to an auto parts
store on West Roosevelt Road. Id. ¶¶
16-17. After Goss bought the part he needed, Plaintiffs
retraced their route to Goss' disabled car, ending up
eastbound on West Polk toward South California. See
id. ¶¶ 14, 18; [60-1] at 6-7.
High School is located at 2935 West Polk, in the stretch
between South California and South Kedzie. See DSOF
¶ 14; [65-1] at 13. Plaintiffs' car therefore
approached Manley for at least the second time that day as
they drove to Goss' car, around 12:48 p.m. See
PSOF ¶ 18; DSOF ¶¶ 16, 17. It was at this
point that they were stopped, on the same block as the
school. See PSOF ¶¶ 18-22; DSOF
¶¶ 10, 20.
day of the stop, King was working as a “school
sergeant, ” meaning that he responded to and
investigated violence near schools within his beat, including
by patrolling the area around the schools. DSOF ¶¶
18-19; [60-4] at 7-8. Around the time of the stop, King stood
outside the school and saw Plaintiffs' car pass in front
of Manley on West Polk for at least the second time
“within a short timeframe.” DSOF ¶ 20. King
claims that he initiated the stop alone at approximately 1:00
p.m. Id.; PSOF ¶ 22. Plaintiffs' versions
of events differ, compare [60-1] at 11 with
[60-2] at 8 and [60-3] at 5, but Goss claims that at
least one other officer participated in the initial stop,
[60-2] at 8, and Roberts describes all three Defendant
Officers as standing on the sidewalk together before jumping
in their cars to jointly effect the stop, [60-3] at 12.
Goss' cell phone video shows a marked police car pulling
up to Plaintiffs' car after King had already approached
Torry's window to ask for identification, but the angle
does not capture any officers getting in or out of the
vehicle. See generally [60-8].
to King, he stopped Plaintiffs' car because he had
reasonable suspicion that Plaintiffs might engage in violence
related to either an earlier shooting nearby or ongoing
violence in the area, some of which was gang-related.
See DSOF ¶¶ 21-26; [60-4] at 20; PSOF
¶¶ 25, 28. King bases his account upon Torry and
Goss' videos of the stop, King's knowledge and
experience relating to the beat he worked at the time, the
practices of the police department, police records from the
day of the stop, his duties and tasks as a school sergeant,
and his familiarity with gang and other violence in the
vicinity of Manley. See [65-1] at 18- 20; [81-1] at
2-4. King no longer independently recalls the stop. [60-4] at
upon these sources, however, King states that driving back
and forth in front of a single location in a high-crime area
constitutes targeting behavior, suggesting that the driver
may be casing a target for future violence. DSOF ¶¶
21, 24. Defendants testified that the area around Manley had
experienced an increase in aggravated batteries involving
weapons and threats to police officers around the time of the
stop, DSOF ¶¶ 21-22, and that on the day of the
stop Manley lay within the geographical “box” set
up to concentrate further police investigation related to a
nearby shooting earlier that day, DSAF ¶¶ 11, 16.
also contend that Plaintiffs generally matched a description
of the suspects involved in that earlier shooting, described
as three black males driving a gray vehicle. DSAF ¶ 1.
Plaintiffs concede that the race, gender, and number of
individuals in Plaintiffs' gray car matched this general
information. See PSOF ¶¶ 15, 18, 30.
According to Defendants, King responded to the shooting that
morning and would have received the description of the
suspects either when he responded to the scene of the
shooting, or via the Office of Emergency Management
Communications (OEMC). DSAF ¶¶ 2-8; [81-1]
¶¶ 7, 10, 12. No. evidence in the record suggests
that any unrelated, additional conduct, such as a traffic
violation, prompted the stop. See R. PSOF ¶ 23.
record confirms that a shooting did, in fact, occur on the
morning of the stop, at or near 640 South Washtenaw Avenue,
about a half mile from Manley. DSOF ¶¶ 11, 13;
[65-1] at 3. Police records show that King responded to that
incident, and King also notes that OEMC would have
disseminated details related to the shooting. See
[81-1] ¶¶ 2, 7, 8, 10, 11; id. at 7. A
police report dated October 2014-over a week after the
stop-describes the shooting suspects' car as a
“Grey Nissan SUV.” [65-1] at 7, 9. An earlier
report contains no such description. See id. at 2-3.
The OEMC Event Query Report setting out the chronology of the
police response to the shooting contains various explanatory
“remarks” from the day of the shooting.
See [81-1] at 6-10. Those remarks confirm that the
police identified the suspects as three black males in a gray
vehicle, but offer conflicting descriptions of the exact make
or model of the suspects' car. A remark time-stamped 8:51
a.m. describes it as a “newer model gry Nissan.”
Id. at 7. Another remark that appears to be
time-stamped 8:43 a.m. reports a witness saw a “gray
Trailblazer, ” id. at 9, while a final remark
lacking any time stamp states that the suspects' car was
a “newer gry Nissan SUV, ” id. at 10.
testified that, at the time of Plaintiffs' stop, the
available information indicated that the shooting suspects
drove a gray vehicle, without the details of its make or
model. See [60-4] at 20; [81-1] ¶ 14. King
states that he “was still actively investigating the
shooting incident” at the time of Plaintiffs' stop
and “would have been on the lookout for a grey vehicle
with three African American male occupants.” [81-1]
¶¶ 13, 14; see also DSOF ¶¶
20-22. Defendants also contend that these circumstances
combined with Plaintiffs' repeated passes in front of
Manley suggested that Plaintiffs “were about to be
involved in retaliatory actions.” DSOF ¶ 21.
Plaintiffs argue, on the other hand, that the records of the
earlier incident sufficiently distinguish Torry's car-a
gray sedan-from the suspects' car, identified as a gray
SUV.  at 6, 7.
Plaintiffs pulled over, King approached their car and asked
Torry for his license and registration. See PSOF
¶ 32; DSOF ¶ 27; [60-7], at 00:01. Upon King's
approach, Torry began video-recording the encounter on his
cell phone. See PSOF ¶ 9; see
generally [60-7]. Torry's video runs the full length
of the stop, until he drives off in his car upon his release.
See generally [60-7]. Goss also made a recording,
though it lasts only about a minute. See generally
[60-8]. At this point, even though the parties continue to
dispute the details of the encounter, this Court assesses
their accounts in light of the video evidence. See Scott
v. Harris, 550 U.S. 372, 380-81 (2007) (holding that
courts need not accept accounts “blatantly contradicted
by the record, ” but should view “the facts in
the light depicted” by video evidence); see also
Hurt v. Wise, -- F.3d --, 2018 WL 507595, at *6 (7th
Cir. Jan. 23, 2018) (explaining that Scott requires
courts to discredit accounts that “flatly”
contradict video evidence, but preserves the rule that courts
draw inferences from the depicted events in the light most
favorable to the opposing party).
The Video Footage
video begins with King's request for identification,
followed by Torry asking why he was detained. [60-7] at
0:00-0:10. King replies that “this was about your third
pass by this school.” Id. at 0:10. King then
clarifies that he is conducting a Terry stop, or
“a custodial stop, ” because Torry “cruised
this street here around this school, ” adding that the
area was “a safe passage” and “the
immediate location of a shooting this morning.”
Id. at 0:56-2:00. Over the course of the stop, King
repeatedly emphasizes that he stopped Torry because he saw
Torry drive past the school-Manley-three times. See
Id. at 2:45, 4:02.
Torry hands King his license and registration, King and Torry
have a disagreement: Torry denies that he passed the school
three times, King tells him not to argue, and Torry demands
King's badge number. Id. at 0:10. King then
appears to step away from Plaintiffs' car for a moment.
Id. at 0:40-0:56. He returns and tells Torry,
“Step out of the car, ” already reaching for the
handle of the driver's door. Id. at 0:56. Torry
asks if he's under arrest, to which King responds:
“Sir, get out of the car please. Sir, this is a
Terry stop, I have the right to search the car, get
out of the car.” Id. at 1:00. By now, a second
officer stands with King outside the driver-side door.
Id. at 1:07. King continues: “If you don't
get out of the car, I will remove you from the car.”
Id. Torry responds, “I'm gonna remove
myself but I just don't want to get-y'all get me,
shoot me, or kill me for something I didn't do
wrong.” Id. at 1:14. King mocks Torry's
concern, saying: “Yes, sir, absolutely; hands up,
don't shoot, there you go.” Id. at 1:16.
testified that at this point he took off his seatbelt and got
out of the car, but that King took his arm anyway as he
exited: “He just grabs me out of the car.” [60-1]
at 9. King then placed Torry in the back seat of his car.
Id. Goss testified that one officer
“grabbed” Torry out of the car, while another
“grabbed” Goss out. [60-2] at 10. The video does
not capture the parties' movements at this point, but
King audibly says, “Come on out, sir, let's go back
to my car, sir, right over here, ” while Torry repeats,
“Please don't shoot.” Id. at
account indicates that at about this point-after Plaintiffs
had been ordered out of the car-Leja prepared a can of mace
by shaking it. See PSOF ¶¶ 34-40.
Defendants offer unrebutted evidence that Leja shook the can
only after Torry “failed to comply with at least 4
different commands to exit the vehicle.” DSAF ¶
19; see also R. DSAF ¶ 19; [60-7] at 0:56-1:14
(multiple orders to exit the car). In any event, ...