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Torry v. City of Chicago

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

February 20, 2018

MARCUS D. TORRY, LATRELL Q. GOSS, and WILLIAM I. ROBERTS, Plaintiffs,
v.
CITY OF CHICAGO, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN ROBERT BLAKEY UNITED STATES DISTRICT JUDGE

         This 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, [1], 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, [23].

         The parties cross-filed for summary judgment. [63, 66]. For the reasons explained below, this Court denies Plaintiffs' motion for summary judgment, [66], and partially grants and partially denies Defendants' motion for summary judgment, [63].

         I. Background

         A. Local Rule 56.1 and Evidentiary Rules

         On 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 ¶ 10.[1] The parties dispute many of the circumstances surrounding the stop and this Court notes those disagreements in its discussion of the incident.

         The 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.

         This 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).

         As to 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 video's authenticity”).

         As to the statements audible on Torry's video, [60-7], Plaintiffs offer a general objection to all such statements as inadmissible hearsay, R. DSOF ¶ 20; [88] 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) and (2).

         Finally, 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 [68]; [88]. 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 Cir. 1992)).

         This 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., [88] 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).

         Finally, 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. 201(d).

         B. The Stop

         On the 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.

         Manley 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.

         On the 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].

         According 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 15, 20.

         Drawing 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.

         Defendants 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.

         The 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.

         King 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. [88] at 6, 7.

         Once 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).

         C. The Video Footage

         Torry's 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.

         After 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.

         Torry 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 1:20-1:27.

         Plaintiffs' 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 ΒΆ 19; [60-7] at 0:56-1:14 (multiple orders to exit the car). In any event, ...


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