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Abarca v. Franchini

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

March 29, 2018

LASARO ABARCA, Plaintiff,
v.
CHICAGO POLICE DETECTIVES TANNIA FRANCHINI #20845, MOREEN HANRAHAN #20565, CITY OF CHICAGO, and ASSISTANT STATES ATTORNEY ANDREA KERTEN, Defendants.

          MEMORANDUM OPINION AND ORDER

          Harry D. Leinenweber, United States District Court Judge

         Before the Court is Defendants' Motion for Summary Judgment [ECF No. 26]. For the reasons herein, the Motion is granted.

         I. BACKGROUND

         Plaintiff 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 ¶ 80.)

         Defendant 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.)

         Abarca was arrested on the morning of May 27, 2013 and transported to the Chicago Police Department 19th District Station. (Id. ¶¶ 28-29.)

         Before 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 ¶ 9.)

         At 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. ¶ 33.)

         After 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.)

         When 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.)

         After 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.)

         Various 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.)

         Abarca 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.)

         At his 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.)

         On 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 claims.

         II. ANALYSIS

         Summary 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 omitted).

         A. CONSTITUTIONAL CLAIMS

         1. Waiver of Miranda Rights

         Abarca 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.

         a. Collateral Estoppel

         During the criminal case, the criminal court held a suppression hearing to determine whether Abarca knowingly and voluntarily waived his Miranda rights during his interrogation.

         Defendants 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 ...

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