United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. Leinenweber, United States District Court Judge
the Court is Defendants' Motion for Summary Judgment [ECF
No. 26]. For the reasons herein, the Motion is granted.
Lasaro Abarca (“Abarca”) is a Spanish-speaking
Illinois citizen who was suspected and later charged for
sexually abusing his daughter. He was acquitted at trial of
all charges. (Pl.'s Resp. to Defs.' Fact Statement
Tannia Franchini is a detective in the Chicago Police
Department in the Special Investigations Unit and was
assigned to Abarca's case on May 14, 2013. (Id.
¶¶ 16-17.) During an interview with Abarca's
minor daughter and her mother, Abarca's daughter told the
investigators that Abarca placed his hand inside her
underwear and touched her private parts. (Id.
¶¶ 18, 22.) The child's mother corroborated her
daughter's statements. (Id. ¶ 26.) Based on
the information from this interview, Detective Franchini
authorized the arrest of Abarca. (Id. ¶ 27.)
was arrested on the morning of May 27, 2013 and transported
to the Chicago Police Department 19th District Station.
(Id. ¶¶ 28-29.)
discussing the details of the subsequent interrogation,
Abarca's English skills are relevant. Abarca was born in
Mexico where he completed high school. (Defs.' Resp. to
Pl.'s Add'l Facts ¶ 1.) He arrived in the United
States as an adult in 1991 and attended two months of English
courses. (Pl.'s Resp. to Defs.' Fact Statement
¶¶ 6-7.) He has lived here ever since, over 25
years. (Id.) In all six of Abarca's jobs in the
United States, he spoke Spanish the majority of the time.
(Defs.' Resp. to Pl.'s Add'l Facts ¶¶
2-5.) He speaks Spanish with his kids, took his driver's
license exam in Spanish, and spoke a mix of Spanish and
English with his daughter's mother. (Id.
¶¶ 7-8.) Abarca states that he can read English,
yet barely understands it. (Pl.'s Add'l Facts ¶
approximately 7:45 p.m. on the day of his arrest, Detective
Franchini brought Abarca to an interview room. (Pl.'s
Resp. to Defs.' Fact Statement ¶ 30.) Abarca's
handcuffs were removed and Detective Franchini asked him in
Spanish whether he preferred to speak in English or in
Spanish, since Detective Franchini is fluent in both.
(Id. ¶ 31.) Abarca chose to speak in English.
(Id. ¶ 32.) According to Abarca, he hoped it
would speed up the questioning process. (Id. ¶
38.) Detective Franchini told Abarca that if at any point he
did not understand something in English he should let her
know so she could repeat it in Spanish. (Id. ¶
Detective Franchini read Abarca each Miranda right
in English, Abarca said (in English) that he understood.
(Id. ¶¶ 34-35.) Detective Franchini
further relates that it was apparent to Detective Franchini
that he could understand English based on his answers to her
questions over the course of the hour-long interrogation.
(Id. ¶¶ 33, 36, 40.) In contrast, Abarca
maintains he did not understand what she was saying.
(Defs.' Resp. to Pl.'s Add'l Facts ¶¶
15-16.) After Detective Franchini finished reading his
rights, Abarca agreed in English to speak with her.
(Pl.'s Resp. to Defs.' Fact Statement ¶ 37.)
Detective Franchini first asked Abarca about inappropriately
touching his minor daughter, Abarca denied doing so.
(Id. ¶ 42.) He simply repeated: “No, I
didn't do anything.” (Defs.' Resp. to Pl.'s
Add'l Facts ¶ 22.) However, Abarca eventually
admitted that when he was “rubbing [his minor
daughter's stomach], his hand slipped underneath her
pants and . . . he touched her vagina.” (Pl.'s
Resp. to Defs.' Fact Statement ¶ 43.) He said he did
so because he was curious to see if she had pubic hair.
(Id. ¶ 44.) Abarca admits saying this to
Detective Franchini but maintains it is simply not true.
(Pl.'s Add'l Facts ¶ 13.) He only admitted to
inappropriately touching his daughter, he says, because he
was tired, frustrated, and wanted to go home - something
Detective Franchini allegedly told him he could not do until
he admitted to touching his daughter in a sexual manner.
(Id. ¶¶ 20, 23-24.) Defendants deny that
Detective Franchini ever promised Abarca that he would be
“let go” if he confessed. (Defs.' Resp. to
Pl.'s Add'l Facts ¶ 24.)
Abarca confessed, Assistant States Attorney
(“ASA”) Andrea Kerten came in to speak with him.
ASA Kerten asked Abarca to sign a written statement
reaffirming his confession; he agreed. (Pl.'s Resp. to
Defs.' Fact Statement ¶ 60 (facts denied without any
record citation will be deemed admitted. See, Local
R. 56.1).) Before signing the statement, ASA Kerten asked
Abarca to read the first paragraph of the statement out loud
to ensure he understood English and was capable of reviewing
of the rest of his statement. (Id. ¶ 61.) After
he read it back without any difficulty, ASA Kerten read the
rest of the statement, telling him that he could stop her to
make any corrections. (Id. ¶ 63.) The statement
includes a sentence affirming that he can read and write in
English. (Defs.' Resp. to Pl.'s Add'l Facts
¶ 9; Pl.'s Resp. to Defs.' Fact Statement ¶
62.) After Abarca signed the statement, he asked detective
Franchini: “Can I go now?” (Id. ¶
64; Pl.'s Add'l Facts ¶ 33.) Abarca claims he
never understood what he was signing. (Pl.'s Add'l
Facts ¶¶ 26-27, 32.)
facts of the interrogation are undisputed. Abarca knew
Detective Franchini was a police officer and that he was
being asked questions about a possible crime. (Pl.'s
Resp. to Defs.' Fact Statement ¶ 41.) Abarca never
indicated that he wanted to speak in Spanish or that he did
not understand what Detective Franchini was saying.
(Id. ¶¶ 39, 46.) Detective Franchini never
physically threatened Abarca. (Id. ¶ 49.)
Additionally, Detective Franchini testified that Abarca never
made any complaints of discomfort or fatigue and never
requested medical aid; Abarca is unable to remember anything
to the contrary. (Id. ¶¶ 45, 66.) When ASA
Kerten spoke to Abarca outside the presence of the detectives
to discuss his treatment, he said he was treated fine and had
no concerns. (Id. ¶ 65.) He also said he was
not promised anything or threatened in order to make his
statements to Detective Franchini. (Id. ¶ 79.)
was subsequently charged with Aggravated Criminal Sexual
Abuse in violation of 720 ILCS 5/11-1.60(b). (Id.
¶ 67.) After hearing testimony during motion to suppress
proceedings, the criminal court judge denied Abarca's
motion, finding his confession voluntary and his waiver
valid. (Id. ¶ 70.)
criminal trial, Abarca testified that he did not sexually
abuse his daughter: “Members of the Jury, with all my
respect, never in my life, I have never touched any of my
kids. I have seven children, and I have three children with
[my daughter's mother]. Never in my life, I have never
touched [my daughter].” (Defs.' Resp. to Pl.'s
Add'l Facts ¶ 34.) The jury found Abarca not guilty
on February 20, 2015. (Pl.'s Resp. to Defs.' Fact
Statement ¶ 80.)
February 22, 2016, Abarca filed a § 1983 action against
the City of Chicago, ASA Kerten, Detectives Franchini and
Hanrahan pursuing theories based on malicious prosecution,
violation of his Fifth Amendment, due process, and
Miranda rights, and respondeat superior and
indemnification. (See, generally Compl., ECF No. 1.)
The parties agreed to the dismissal of ASA Kerten and
Detective Hanrahan leaving only two Defendants - the City of
Chicago and Detective Franchini - and three counts remaining.
Those counts are: Count I (Fifth Amendment, due process,
Miranda claim), Count IV (respondeat superior and
indemnification), and Count V (malicious prosecution).
(Id.; Agreed Order of Dismissal, ECF No. 25.) The
Defendants now move for summary judgment on Abarca's
judgment is appropriate when the admissible evidence reveals
no genuine issue of any material fact and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The Court construes all facts and reasonable inferences in
the light most favorable to the non-moving party: here,
Abarca. Bentrud v. Bowman, Heintz, Boscia & Vician,
P.C., 794 F.3d 871, 874 (7th Cir. 2015) (citation
Waiver of Miranda Rights
argues that his limited English skills prevented him from
making a knowing and voluntary waiver of his Miranda
rights. Defendants contend that this Court cannot reach this
question because it has already been decided by the criminal
court. Thus, as an initial matter, the Court must first
decide whether to address the merits.
the criminal case, the criminal court held a suppression
hearing to determine whether Abarca knowingly and voluntarily
waived his Miranda rights during his interrogation.
rely on Hernandez v. Sheahan, 711 F.3d 816, 818 (7th
Cir. 2013), to argue that Abarca is collaterally estopped
from relitigating whether he knowingly and voluntarily waived
his Miranda rights because the criminal court
already ruled he had. In Hernandez, the Seventh
Circuit held that the district court was barred from
considering whether the defendant's statement was
voluntary where the state court had already ruled that it
was. Id. Yet the Hernandez rule has
exceptions: the pertinent one here being that a defendant
will not be collaterally estopped if he or she had no
opportunity to appeal the first ruling. Sornberger v.
City of Knoxville, Ill., 434 F.3d 1006, 1020-23 (7th
Cir. 2006). In Sornberger, the Seventh Circuit
reversed a district court's ruling that plaintiff's
earlier, unsuccessful suppression motion collaterally
estopped her from relitigating Miranda-waiver in a
later § 1983 action. Id. The court reasoned
that limits on collateral estoppel arise from problems of
appealability rather than the nature of the subsequent
proceeding and thus apply to all subsequent actions - both
civil and criminal:
[A] defendant, unlike the prosecution, is not allowed an
immediate appeal from an adverse ruling upon a motion to
suppress. He cannot review that ruling until after he has
been convicted and sentenced. And for a variety of reasons he
might not wish to appeal, or as in the case ...