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Koh v. Graf

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

March 30, 2018

HYUNG SEOK KOH and EUNSOOK KOH, Plaintiffs,
v.
MARK GRAF, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Honorable Edmond E. Chang United States District Judge

         Hyung Seok Koh and Eunsook Koh bring this civil rights lawsuit against Northbrook police officers Mark Graf, John Ustich, Charles Wernick, Roger Eisen, Matthew Johnson, Scott Dunham, Bryan Meents, and Keith Celia; Wheeling police officer Sung Phil Kim; and the Villages of Northbrook and Wheeling.[1] R. 133, Second Am. Compl.[2] The Kohs' claims arise out of the Defendants' investigation into the death of their son, Paul Koh. Both the Northbrook Defendants and the Wheeling Defendants have moved for summary judgment on all of the Kohs' claims. R. 274, Wheeling Defs.' Mot. Summ. J.; R. 278, Northbrook Defs.' Mot. Summ. J; R. 362, Defendants' Joint Mot. Summ. J.[3] For the reasons below, the motions are granted in part and denied in part.

         I. Background

         For purposes of the summary judgment motions, the facts are viewed in the light most favorable to the Kohs (because they are the non-movants), and all reasonable inferences are drawn in their favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         A. At the Scene

         At around 3:45 a.m. on April 16, 2009, Eunsook Koh found her 22-year-old son, Paul Koh, lying in a pool of blood in the entryway of their family home. R. 280, NDSOF ¶ 1; R. 315, PSOF ¶ 2; R. 288-2, Exh. 82, Mar. 22, 2010 Pretrial Hr'g Tr. 42:9-43:14 (sealed).[4] Mrs. Koh's screams woke up her husband, Hyung Seok Koh, who frantically called 911. PSOF ¶¶ 2-3; NDSOF ¶¶ 1-2; R. 280-2, Exh. 1, 911 Call Tr. 1-3. While waiting for the police, the Kohs (thinking that Paul might still be alive) dressed to go to the hospital. PSOF ¶ 3; R. 282-2, Exh. 11, May 11, 2010 Pretrial Tr. 39:13-23. Mr. Koh then called 911 a second time and asked for help. PSOF ¶ 3; NDSOF ¶ 2; Exh. 1, 911 Call Tr. 4-5.

         Within minutes, Northbrook police officers Eisen, Johnson, Meents, and Celia arrived at the Kohs' house. NDSOF ¶ 3; PSOF ¶ 4; Exh. 6, NPD Call Detail Report (sealed). The officers found Mr. Koh with a cordless phone in his hand near the front door of the house and Mrs. Koh crouched over Paul's body. NDSOF ¶ 4; R. 280-5, Exh. 4, Celia Dep. Tr. 35:6-37:10. Paul had suffered major stab wounds to his throat and chest. NDSOF ¶¶ 5, 29; Exh. 4, Celia Dep. Tr. 36:23-37:7. Mr. Koh was frantic and screaming for someone to help his son; Mrs. Koh was crying. PSOF ¶ 4; Exh. 4, Celia Dep. Tr. 36:5-38:7. Celia and Meents told Mrs. Koh to come out on to the lawn. Exh. 4, Celia Dep. Tr. 42:21-43:12. Meanwhile, Mr. Koh went out to try to start the family car, but Meents followed him and corralled him back to the front yard. R. 280-6, Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 12:6-13:17. The Kohs were pushed to the ground on their lawn, and sat there for ten to fifteen minutes while Johnson and Meents watched over them. NDSOF ¶¶ 8, 11; PSOF ¶ 5; Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 15:19-21; NDSOF Exh. 7, Meents Dep. Tr. 71:1-19. At various times, the Kohs asked to go into the house to see their son, to gather Mr. Koh's medications, to get Mr. Koh's cell phone, and to go to the hospital. NDSOF ¶¶ 8, 12-13, 15; R. 283-6, Exh. 17, Hyung Seok Koh Dep. Tr. 354:4-355:8. These requests were denied. NDSOF ¶¶ 12-13, 15; Exh. 11, May 11, 2010 Pretrial Hr'g Tr. 76:8-20; Exh. 5, Meents Dep. Tr. 132:2-9.

         At the direction of Commander Eisen, Officers Johnson and Meents took the Kohs to Johnson's squad car. R. 380-4, Exh. 3, Eisen Dep. Tr. 56:6-9; R. 282, Exh. 9, Johnson Dep. 67:22-68:7; Exh. 5, Meents Dep. Tr. 89:8-16. The Kohs maintain-and the Northbrook Defendants do not deny (at the summary judgment stage)-that the officers “pushed” and “sort of shoved” them into the squad car. R. 311, Pls.' Resp. NDSOF ¶ 16; Exh. 17, Hyung Seok Koh Dep. Tr. 363:16-364:17 (“[T]hey held our arm or twisted our arm, and then they sort of shoved us into the squad car.”); R. 283, Exh. 12, Mar. 22, 2010 Pretrial Hr'g Tr. 57:24-58:7 (“I was asking to go to the hospital, but he said you don't have to go to the hospital and took me to the squad car, pushed me to the squad car.”). Johnson drove the Kohs to the Northbrook Police Department. NDSOF ¶ 22; R. 282, Exh. 9, Johnson Dep. Tr. 76:19-21. Neither he nor any other officer ever asked the Kohs whether they wanted to go to the station. PSOF ¶ 6; Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 41:18-42:12; Exh. 82, Mar. 22, 2010 Pretrial Hr'g Tr. 64:8-65:14 (sealed).

         B. At the Police Station

         When the Kohs arrived at the police station, Mr. Koh asked to sit in the station's chapel, but his requests were denied. PSOF ¶ 7; NDSOF ¶ 37; R. 287-21, Exh. 79, Nov. 13, 2009 Pretrial Hr'g Tr. 59:3-9 (sealed). Instead, Officers Johnson and Ochab escorted the Kohs to a conference room in the police station. NDSOF ¶¶ 34-35; Exh. 9, Johnson Dep. Tr. 85:20-87:20. On the way there, one of the officers asked Mrs. Koh to wash her bloodstained hands in the women's restroom. PSOF ¶ 8; NDSOF ¶ 34; Exh. 9, Johnson Dep. Tr. 85:20-86:23. The officers watched Mrs. Koh as she did so, and investigators inspected the bathroom after she finished. PSOF ¶ 8; Exh. 9, Johnson Dep. Tr. 87:3-11; R. 284-4, Exh. 28, Wasowicz Dep. Tr. 66:8-24.

         The Kohs were taken to the conference room and were given blankets and beverages. NDSOF ¶ 44; Exh. 9, Johnson Dep. Tr. 89:1-19. Johnson or other officers watched over the Kohs throughout their time in the conference room.[5] NDSOF ¶ 44; Exh. 9, Johnson Dep. 220:2-13. Mr. Koh asked to make a phone call, but was not allowed to do so. PSOF ¶ 11; see also R. 328, Northbrook Defs.' Resp. PSOF ¶ 11 (noting that the Deputy Chief Ross “directed Officer Johnson to hold off on the phone call for a few minutes until a translator was present”); R. 308-27, Exh. 134, Transcript of NPD Audio Recordings at 11-12; R. 292-4, Exh. 103, Ross Dep. Tr. 82:17-84:6. Johnson did eventually contact Mr. Koh's pastor, who arrived at the station around 6:00 a.m. PSOF ¶ 10; Exh. 82, Mar. 22, 2010 Pretrial Hr'g Tr. 12:21-13:14 (sealed). Despite his repeated requests, however, Pastor Chang was not allowed to see Mr. Koh. PSOF ¶ 10; Exh. 82, Mar. 22, 2010 Pretrial Hr'g Tr. 17:20-18:8 (sealed). Other friends and family members came to the police station and asked to see the Kohs, but their requests were likewise denied. PSOF ¶¶ 12, 24; R. 286, Exh. 48, Hwang Dep. Tr. 102:17-103:7 (sealed); R. 288-3, Exh. 83, May 11, 2010 Pretrial Hr'g Tr. 147:12-149:19; Exh. 79, Nov. 13, 2009 Pretrial Hr'g Tr. 91:13-95:17 (sealed). Instead, the police interviewed these individuals about Mr. Koh's relationship with his son. PSOF ¶¶ 10, 12-13; Exh. 82, Mar. 22, 2010 Pretrial Hr'g Tr. 15:1-8 (sealed); Exh. 83, May 11, 2010 Pretrial Hr'g Tr. 150:8-151:11.

         C. The Investigation

         As the Kohs waited at the police station, the investigation into Paul's death progressed. Commander Eisen directed dispatchers at the station to locate a Korean-speaking police officer to help facilitate communication with the Kohs, who had difficulty communicating in English.[6] PSOF ¶ 16; Exh. 3, Eisen Dep. Tr. 151:7-155:3. A Wheeling police officer, Defendant Kim, responded to the request and arrived at the Northbrook police station to provide interpretation assistance. NDSOF ¶ 45; WDSOF ¶ 8; R. 284-17, Exh. 39, Kim Dep. Tr. 80:10-81:9.

         At around 5:00 a.m., Northbrook's Chief of Police, Defendant Wernick, arrived at the Kohs' house. NDSOF ¶ 26; R. 280-7, Exh. 6, NPD Call Detail Report (sealed). Chief Wernick notified the North Regional Major Crimes Task Force (NORTAF), a regional team designed to assist with major crime investigations, about Paul's death. NDSOF ¶¶ 26-27; R. 284-1, Exh. 25, Wernick Dep. Tr. 58:15-19. In response to Chief Wernick's notice, NORTAF investigators arrived on scene. NDSOF ¶¶ 28-32; R. 284-3, Exh. 27, McEnerney Dep. Tr. 81:4-82:10; R. 284-4, Exh. 28, Wasowicz Dep. Tr. 26:22-28:7. Later that morning, a group of NORTAF members and other law enforcement officers conducted a briefing on the Koh case at the Northbrook police station. See NDSOF Exh. 9, Johnson Dep. Tr. 153:12-16; NDSOF Exh. 28, Wasowicz Dep. Tr. 31:1-32:12. What happened at this meeting is not entirely clear-most of the attendees cannot remember exactly who was there or what information was shared-but it appears that NORTAF forensic supervisor Wasowicz presented his preliminary impressions of the scene, and that Officer Johnson shared information that he learned from the Kohs. Exh. 9, Johnson Dep. Tr. 160:10-161:10; Exh. 28, Wasowicz Dep. Tr. 32:13-34:8; R. 284-5, Exh. 29, Wasowicz Aff. ¶ 14; Exh. 27, McEnerney Dep. Tr. 116:13-117:11. The Kohs had informed Johnson that Paul Koh used marijuana, and that Paul was depressed and the Kohs believed he might have committed suicide. Exh. 9, Johnson Dep. Tr. 160:2-161:9; NDSOF ¶¶ 23, 41.

         1. Mr. Koh's First Interview

         At around 7:30 a.m., Mr. Koh was interviewed by Northbrook detectives Graf and Ustich-the first of two police interrogations he would undergo that morning. NDSOF ¶ 52; R. 285-1, Exh. 42, Video of Hyung Seok Koh Interview 1. Officer Kim was present to assist with Korean-language interpretation. NDSOF ¶ 52; Exh. 42, Video of Hyung Seok Koh Interview 1. This first interview lasted about 55 minutes. NDSOF ¶ 52; Exh. 42, Video of Hyung Seok Koh Interview 1. Before the start of the interview, Mr. Koh made another request for his medications (which he used to control his diabetes, high blood pressure, and ammonia level disorder). PSOF ¶ 20; R. 289-1, Exh. 85, Mar. 16, 2010 Pretrial Hr'g Tr. 14:3-15:12.[7] Detective Graf responded that someone would bring him the medications, but that did not happen.[8]PSOF ¶ 20; R. 289-1, Exh. 85, Mar. 16, 2010 Pretrial Hr'g Tr. 14:3-15:12.

         Before questioning Koh on the events of the night before, Graf administered Miranda warnings in English. NDSOF ¶ 54; R. 285-3, Exh. 44, Hyung Seok Koh Interview Tr. 1-3.[9] Koh nodded that he understood the warnings, but then asked Officer Kim to “transfer” (apparently meaning to say “translate”). Exh. 42, Video of Hyung Seok Koh Interview 1 at 00:01:30-00:01:36. Kim did translate at least part of the Miranda warnings into Korean, but the parties debate whether Kim translated the warnings properly, and whether Mr. Koh understood them. See PSOF ¶ 102-105; WDSOF ¶ 36; R. 309, Pls.' Resp. WDSOF ¶ 36; R. 323, Wheeling Defs.' Resp. PSOF ¶¶ 102-105. Mr. Koh ultimately executed an English-language Miranda waiver form at Graf's and Kim's directions. Exh. 42, Video of Hyung Seok Koh Interview 1 at 00:02:13-00:02:36; NDSOF ¶ 54; R. 285-4, Exh. 45, Miranda Waiver Form; Exh. 44, Hyung Seok Koh Interview Tr. 1-3.

         The first interview was conducted mostly in English, with little intervention from Kim. See generally Exh. 42, Video of Hyung Seok Koh Interview 1. Although Mr. Koh was able to answer some questions and communicate at a basic level in English, some of his answers were confusing or unresponsive to Graf's questions. See, e.g., Exh. 44, Hyung Seok Koh Interview Tr. 3-4, 36. Graf nevertheless continued questioning Mr. Koh in English, and raised the possibility that Mr. Koh might have harmed Paul. See, e.g., id. at 36-37. Throughout this first interview, Mr. Koh repeatedly denied any involvement in Paul's death. PSOF ¶ 109; NDSOF ¶ 59; Exh. 44, Hyung Seok Koh Interview Tr. 36-37; 39-42; 45. Graf and Mr. Koh also discussed Paul's drug use and depression. NDSOF ¶ 63; Exh. 44, Hyung Seok Koh Interview Tr. 52-58.

         2. Mrs. Koh's Interview

         Two NORTAF detectives (not defendants in this case) interviewed Mrs. Koh as soon as Mr. Koh's first interview ended. NDSOF ¶ 73; R. 308-14, Exh. 121, Eunsook Koh Interview Tr. Officer Kim also provided interpretation assistance during Mrs. Koh's interview, which lasted around 55 minutes. NDSOF ¶ 73; R. 286- 13, Exh. 54, Video of Eunsook Koh Interview. Mrs. Koh's version of events mostly corroborated Mr. Koh's. PSOF ¶ 111; Wheeling Defs.' Resp. PSOF ¶ 111; NDSOF ¶¶ 74-76; see also Exh. 54, Video of Eunsook Koh Interview; Exh. 121, Eunsook Koh Interview Tr.[10]

         3. Meetings Before Mr. Koh's Second Interview

         Before resuming their interrogation of Mr. Koh, Graf and Ustich met with several of their superiors to discuss how to proceed. PSOF ¶ 26; R. 284-14, Exh. 36, Graf Dep. Tr. 91:4-93:24; Exh. 28, Wasowicz Dep. Tr. 30:13-32:12. Present at these meetings[11] were Northbrook Chief of Police Charles Wernick, Investigations Unit Commander Scott Dunham, NORTAF Commander Dennis McEnerney, and NORTAF investigative team leader John Walsh. Exh. 36, Graf Dep. Tr. 91:23-92:12; NDSOF Exh. 40, Ustich Dep. Tr. 85:1-4. Graf and Ustich relayed their suspicions about Mr. Koh, noting that he did not vehemently deny his lack of involvement in Paul's death, and that they thought his answers were evasive. NDSOF Exh. 40, Ustich Dep. Tr. 85:21-86:4; 95:1-14. The group discussed various pieces of evidence that had been uncovered by the ongoing investigation, including crime scene evidence that seemed to indicate a struggle, and evidence of tension between Paul and Mr. Koh. NDSOF Exh. 40, Ustich Dep. Tr. 95:6-96:1; R. 285-5, Exh. 46, May 16, 2011 Pretrial Hr'g. Tr. 39:21-42:19. Dunham instructed Graf and Ustich to “press Mr. Koh a little bit harder.” Ustich Dep. Tr. 96:16-19.

         4. Mr. Koh's Second Interview

         At around 11:30 a.m., Detectives Graf and Ustich, joined again by Officer Kim, began questioning Mr. Koh a second time. NDSOF ¶ 78; Video of Hyung Seok Koh Interview 2. Before reinitiating questioning, Detective Graf offered Mr. Koh food, coffee, juice, and water. NDSOF ¶ 80; Exh. 44, Hyung Seok Koh Interview Tr. 58. Although Mr. Koh had not recently eaten, slept, or taken his medications, PSOF ¶ 29; Exh. 17, Hyung Seok Koh Dep. Tr. 354:22-355:8, all he said in response was, “Yeah, what I need is I'll let you know, ” Exh. 44, Hyung Seok Koh Interview Tr. 59; see also NDSOF ¶ 80.

         As demonstrated on the video recording, the questioning in the second interview was more aggressive. Graf, implementing a particular law-enforcement interrogation technique, pressed Koh hard about the events of the night before, confronting him with inconsistencies (real and imagined) in his story. See NDSOF Exh. 36, Graf Dep. Tr. 105:2-110:15; see also NDSOF ¶¶ 50-51. At first, Mr. Koh denied any involvement in Paul's death, sticking to his story that he had gone to bed and had slept until he was awoken by Mrs. Koh at around 3:45 a.m. See, e.g., Exh. 44, Hyung Seok Koh Interview Tr. at 68, 101-02. In response, Graf intensified his questioning, eventually moving to sit in a chair next to Mr. Koh (up until this point, Detective Graf had been sitting across the table from Mr. Koh). NDSOF ¶ 85; R. 286-14, Exh. 55, Video of Hyung Seok Koh Interview 2 00:45:11-00:45:24; Exh. 44, Hyung Seok Koh Interview Tr. 103. Detective Graf also began to raise his voice, yell at Mr. Koh, and touch Mr. Koh on his arms and legs. PSOF ¶ 33; Northbrook Defs.' Resp. PSOF ¶ 33; NDSOF ¶ 92; Pls.' Resp. NDSOF ¶ 92; Exh. 55, Video of Hyung Seok Koh Interview 2 00:55:20-01:09:53.

         Graf began to present details of his theory of the crime, stating that he knew that Mr. Koh had called Paul the night before and stayed up waiting for Paul to come home. NDSOF ¶ 87; Pls.' Resp. NDSOF ¶ 87; Exh. 44, Hyung Seok Koh Interview Tr. 108-111, 114. Though Mr. Koh initially denied Graf's version of events (even despite Graf's repeated accusations that Mr. Koh was lying), he eventually began to go along with Graf's suggestions. See Exh. 44, Hyung Seok Koh Interview Tr. 111-144; see also PSOF ¶¶ 38, 45-50; Northbrook Defs.' Resp. PSOF ¶¶ 38, 45-50; NDSOF ¶¶ 87, 93; Pls.' Resp. NDSOF ¶ 87. As the questioning went on, Mr. Koh became visibly distressed, sitting hunched in his chair and occasionally hitting himself in the head or chest. Exh. 55, Video of Hyung Seok Koh Interview 2 00:44:03, 01:08:10-01:09:53; R. 286-16, Exh. 57, Video of Hyung Seok Koh Interview 3[12] 00:03:15-00:03:20, 00:10:50-00:10:52, 00:12:18-00:12:20; see also PSOF ¶ 32. For the most part, Kim did not provide translation assistance, and Graf did not leave time between questions to allow for translation. See generally Exh. 55, Video of Hyung Seok Koh Interview 2; Exh. 57, Video of Hyung Seok Koh Interview 3.

         Eventually, Mr. Koh agreed (that is, the details of his story were suggested by Graf and Mr. Koh assented) that he stayed up until 1:00 a.m. waiting for Paul to come home; that Mr. Koh was mad because Paul had been out late smoking marijuana with friends; and that the two got into an argument when Paul finally came home, which culminated in Mr. Koh stabbing his son in the chest and slitting his son's throat with a knife in self-defense. Exh. 44, Hyung Seok Koh Interview Tr. 111-144; see also NDSOF ¶¶ 89-90; Pls.' Resp. NDSOF ¶¶ 89-90. As with most of the details in that version, it was Detective Graf who presented Mr. Koh with the self-defense storyline. See Exh. 44, Hyung Seok Koh Interview Tr. 135-136; see also PSOF ¶ 119; Wheeling Defs.' Resp. PSOF ¶ 119; NDSOF ¶ 94.

         About three minutes before what would be the end of the interview, Officer Dunham knocked on the door. PSOF ¶ 42; Exh. 57, Video of Hyung Seok Koh Interview 3 at 00:18:19. Graf stepped outside the interview room and told Dunham that Mr. Koh was in the middle of confessing to his son's murder. PSOF ¶ 42; R. 284, Exh. 24, Dunham Dep. Tr. 65:13-66:10. Dunham told Graf that Mr. Koh's attorney, Michael Shim, was at the police station[13] and would be brought back to the interview room. PSOF ¶ 42; Exh. 24, Dunham Dep. Tr. 66:21-68:18. While Dunham escorted Mr. Shim back to the interview room, Graf continued to question Mr. Koh. PSOF ¶ 43; Exh. 36, Graf Dep. Tr. 203:14-16. Graf picked up the pace of the interview and put more pressure on Mr. Koh to confess. PSOF ¶ 43; Exh. 44, Hyung Seok Koh Interview Tr. 144 (“Hyungseok, come on. Right now, let's be done, hurry up, fast.”). Koh eventually made statements that could be interpreted as an admission that he had stabbed Paul.[14] See Exh. 44, Hyung Seok Koh Interview Tr. at 144-45. Mr. Koh also made stabbing or slashing motions with his hands in response to Graf's questioning about whether and how he had cut Paul. Exh. 57, Video of Hyung Seok Koh Interview 3 at 18:40-20:09. The interview terminated when Mr. Shim arrived and insisted that Graf stop the questioning. Exh. 57, Video of Hyung Seok Koh Interview 3 at 21:08-21:36.

         D. Criminal Proceedings

         As soon as the interview was over, Detective Graf met with Chief Wernick and Officers Dunham, Ustich, and McEnerney. PSOF ¶ 44. (Officer Kim was not present at this meeting, nor at the meetings that took place in between Mr. Koh's interviews earlier that morning. WDSOF ¶ 18.[15]) In light of Mr. Koh's inculpatory statements, the group decided to call the Cook County State's Attorney's Office to seek approval to file murder charges against him. PSOF ¶ 44; Exh. 36, Graf Dep. Tr. 327:11-329:18. In response to this call, two assistant Cook County State's Attorneys, Diane Sheridan and Rick Albanese, went to the Northbrook Police Department that afternoon and reviewed portions of Mr. Koh's videotaped confession.[16] PSOF ¶¶ 44, 59-61; NDSOF ¶ 108; Pls.' Resp. NDSOF ¶ 108; R. 308-50, Exh. 157, Felony Review Folder. Sheridan also met with Graf and McEnerney. NDSOF ¶ 108; Pls.' Resp. NDSOF ¶ 108.

         The next morning, Assistant State's Attorney Bob Heilengoetter approved first-degree felony murder charges against Mr. Koh. NDSOF ¶ 109; R. 287-9, Exh. 67, Felony Compl. In reaching that decision, ASA Heilengoetter relied on information contained in a “felony review folder” compiled by ASA Albanese. PSOF ¶¶ 59, 62; Northbrook Defs.' Resp. PSOF ¶¶ 59, 62; Exh. 157, Felony Review Folder. The folder included autopsy results, Albanese's notes about Mr. Koh's video-recorded statements, and ASA Heilengoetter's notes from a phone conversation he had with Detective Graf earlier that day. Exh. 157, Felony Review Folder; see also PSOF ¶¶ 59-60; Northbrook Defs.' Resp. PSOF ¶¶ 59-60. ASA Heilgoetter did not view any portion of the video himself. PSOF ¶ 60; R. 287-10, Exh. 68, Heilengoetter Dep. Tr. 78:21-79:6. The parties dispute whether ASA Heilengoetter relied on any other evidence or on anyone else's input when deciding whether to bring charges, compare PSOF ¶¶ 59, 65; Pls.' Resp. NDSOF ¶ 110, with NDSOF ¶ 110; Northbrook Defs.' Resp. PSOF ¶¶ 59, 65, as well as the extent to which ASA Heilengoetter knew about Paul's mental health issues, compare PSOF ¶ 66, with Northbrook Defs.' Resp. PSOF ¶ 66. Detective Ustich filled out the felony complaint before Detective Graf signed off on it. NDSOF ¶ 109; Exh. 157, Felony Review Folder.

         On May 13, 2009, the state obtained a grand jury indictment against Mr. Koh for first-degree murder. PSOF ¶ 73; see also R. 308-63, Exh. 170, Grand Jury Tr. Detective Graf testified before the grand jury. PSOF ¶ 73; see also Exh. 170, Grand Jury Tr. Charges were never brought against Mrs. Koh, and she was released on April 17, 2009 after spending the night in a jail cell. NDSOF ¶ 111; R. 287-11, Exh. 69, Eunsook Koh Prisoner Checklist. Mr. Koh, on the other hand, ultimately spent almost four years in Cook County Jail awaiting trial. R. 316, Pls.' Resp. Br. at 22; see PSOF ¶¶ 73-74. Finally, after a three-week trial in December 2012-during which the defense (that is, Mr. Koh) argued that Paul took his own life-a jury acquitted Mr. Koh of all charges. PSOF ¶ 74; NDSOF ¶ 122.

         II. Standard of Review

         Summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating summary judgment motions, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must consider only evidence that can “be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). The party seeking summary judgment has the initial burden of showing that there is no genuine dispute and that they are entitled to judgment as a matter of law. Carmichael v. Vill. of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the adverse party must then “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.

         III. Analysis

         Both sets of Defendants have moved for summary judgment on all the claims in the Kohs' Second Amended Complaint. In Count One of that complaint, the Kohs allege that the Defendants arrested them without probable cause (or, in Officer Kim's case, extended Mr. Koh's unlawful detention) in violation of the Fourth Amendment. R. 133, Second Am. Compl. ¶¶ 48-52. In Count Two, the Kohs allege that the Defendants violated Mr. Koh's right against self-incrimination and his right to due process under the Fifth and Fourteenth Amendments. Id. ¶¶ 53-56. Count Three alleges that the Defendants failed to intervene to prevent these constitutional violations, id. ¶¶ 57-60, Count Four targets the Village of Northbrook, alleging that the Northbrook Defendants were acting pursuant to an unconstitutional municipal policy and practice, id. ¶¶ 61-65, and Count Five alleges that the Defendants conspired to violate the Kohs' constitutional rights, id. ¶¶ 66-70. Finally, in the wake of the Supreme Court's decision in Manuel v. City of Joliet, 137 S.Ct. 911 (2017), the Kohs contend that Mr. Koh's pretrial detention violated the Fourth Amendment. R. 357, Pls.' Supp. Br. at 1-3.

         The Kohs also bring a few state-law claims. Count Six is a malicious prosecution claim, which alleges that the Defendants fabricated evidence, [17]withheld exculpatory information, and subjected Mr. Koh to criminal proceedings without probable cause. Second Am. Compl. ¶¶ 71-75. Count Seven is (or was[18]) an intentional infliction of emotional distress claim, id. ¶¶ 76-80, and Count Eight alleges loss of consortium on behalf of Mrs. Koh, id. ¶¶ 81-84. Finally, Counts Nine and Ten allege respondeat superior and indemnification against the Villages of Northbrook and Wheeling. Id. ¶¶ 85-93. With the claims laid out, the Court analyzes each in turn.

         A. Conspiracy and Failure to Intervene

         Before digging into the Kohs' substantive claims, their derivative claims for conspiracy and failure to intervene merit a brief discussion. The Northbrook Defendants assert that the Kohs have not established sufficient facts to demonstrate that individual defendants should be liable for conspiracy or failure to intervene. Northbrook Defs.' Br. at 37-38. In its prior opinion on the Defendants' motion to dismiss, the Court noted the complaint's[19] lack of clarity on which Defendants supposedly committed which violations, but held that this group pleading was appropriate at the pleading stage. R. 82, Opinion on Mot. Dismiss at 9. At the same time, the Court noted that the Kohs would eventually bear the burden of tying particular Defendants to particular injuries. Id. at 10. Northbrook now argues that the Kohs have not met that burden, and that summary judgment is therefore warranted on the conspiracy and failure to intervene claims.

         There is a problem with this argument: the Northbrook Defendants do not explain which Defendants are entitled to summary judgment, on what claims, or (if it matters) at what point in time during the course of events particular Defendants ceased being even potentially liable. This is a fatal oversight. On summary judgment, the moving party carries the burden of demonstrating that there are no genuine issues of material fact and that it is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(a). In this case, Northbrook's motion is so vague on the group-allegations argument that the Court is left to guess which Defendants Northbrook believes are entitled to summary judgment on which theories of liability. See R. 279, Northbrook Defs.' Br. at 37-38; R. 329, Northbrook Defs.' Reply Br. at 36-37.[20] Northbrook's vague arguments are especially troubling in this case, because there is evidence from which a reasonable jury could infer that at least some of the Defendants conspired to deprive the Kohs of their constitutional rights, and that some Defendants failed to intervene to prevent the violations. So, contrary to Northbrook's argument, it is not enough to simply point out to an absence of evidence to support the Kohs' claims. See Northbrook Defs.' Mot. Summ. J. at 38.

         To be sure, the Kohs do have the ultimate burden of proving conspiracy and failure to intervene, and it is very unlikely that they will be able to do so for all Defendants when it comes to the trial. It seems clear, for example, that liability for the on-scene arresting officers-Meents, Johnson, Eisen, and Celia-must cut off at some point in time after the Kohs arrived at the police station and the interrogations began. Unsupported allegations of a conspiracy of which there is no evidence will not be enough at trial (and indeed would not have been enough to withstand a properly detailed motion for summary judgment). Unfortunately, Northbrook has not made these arguments in enough detail to give the Kohs or the Court fair notice of the grounds for summary judgment. Northbrook's motion for summary judgment on the conspiracy and failure to intervene claims is denied.

         B. False Arrest

         Moving on to the substantive claims, the Kohs allege the Defendants arrested them without probable cause (or, in Officer Kim's case, extended Mr. Koh's unlawful detention) in violation of the Fourth Amendment.[21] To evaluate this claim, the Court must answer two key questions. First, at what point were the Kohs under arrest for Fourth Amendment purposes? Second, when, if ever, did the arresting officers have probable cause (or at least arguable probable cause) to detain the Kohs?

         1. Timing of the Arrest

         An arrest occurs when, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Tyler, 512 F.3d 405, 409-10 (7th Cir. 2008) (quotations and citations omitted). This is an objective standard: the officer's and the suspect's subjective beliefs are not part of the legal analysis. Carlson v. Bukovic, 621 F.3d 610, 618-19 & n.15 (7th Cir. 2010). Relevant circumstances include the location of the arrest, the officers' statements and conduct, use of threats or threatening conduct, and whether the suspect was removed to another location. United States v. Scheets, 188 F.3d 829, 836-37 (7th Cir. 1999); see also Fox v. Hayes, 600 F.3d 819, 833 (7th Cir. 2010); Tyler, 512 F.3d at 410. The “characteristics” of the suspect, including whether the suspect “ha[s] problems understanding the English language, ” are also relevant to determining whether an arrest occurred. United States v. Espinosa-Alvarez, 839 F.2d 1201, 1205 (7th Cir. 1987); see also United States v. Schumacker, 577 F.Supp. 590, 595 (N.D. Ill. 1983). This is because individuals who have difficulty understanding English might feel “a greater compulsion to comply with the request of the police.” Espinosa-Alvarez, 839 F.2d at 1205.

         From the very beginning of their encounter with the Kohs, the Northbrook police officers acted in a way that would lead reasonable persons to think that they were not free to leave. The officers' first action upon arriving at the scene was to yell at Mrs. Koh to leave the house and sit down on the grass outside. NDSOF ¶ 8; Exh. 12, Mar. 22, 2010 Pretrial Hr'g. Tr. 51:23-52:2. Two Northbrook officers then grabbed Mrs. Koh by her arm and shoulder and forced her down onto the grass. NDSOF ¶ 8; Exh. 12, Mar. 22, 2010 Pretrial Hr'g. Tr. 52:15-22, 53:5-8. When Mr. Koh looked like he might be trying to leave the scene-he went to the driveway to try to start his car to take Paul to the hospital-Officer Meents told Mr. Koh that he had to go back to the front lawn. Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 12:6-13:17. Meents then escorted Mr. Koh away from the car and back to the front lawn, despite Mr. Koh's protests that he wanted to go to the hospital. Id. at 13:11-17; R. 283-7, Exh. 18, Jan. 5, 2010 Pretrial Hr'g Tr. 21:15-22:7. The officers pushed Mr. Koh down onto the grass by his shoulders, and told him not to move. NDSOF ¶ 11; Exh. 10, Nov. 13, 2009 Pretrial Hr'g Tr. 35:11-16, 38:9-15; Exh. 11, May 11, 2010 Pretrial Hr'g Tr. 68:14-21. Officers also screamed at Mr. Koh to “shut up” and “be quiet.” Exh. 18, Jan. 5 2010 Pretrial Hr'g Tr. 23:22-24:1-3. Once the Kohs were on the ground on the front lawn, Meents and Johnson stood over them in them for as long as fifteen minutes, remaining in “close proximity” to the Kohs the entire time. NDSOF Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 15:19-21; R. 280-8, Exh. 7, Meents Dep. 71:1-19. During this time, the officers denied the Kohs' requests to go into the house for medications, to retrieve their cell phone, and to see their son.[22] NDSOF ¶¶ 12-13, 15; Exh. 11, May 11, 2010 Pretrial Hr'g Tr. 76:8-20; Exh. 5, Meents Dep. Tr. 132:2-9; R. 283-6, Exh. 17, Hyung Seok Koh Dep. Tr. 354:4-355:8. Based on the officers' actions at the scene-shoving the Kohs around, standing guard over them for an extended period of time, ordering them to sit on the ground, screaming at them, and refusing their requests to leave the lawn-a jury could reasonably find that the Kohs were not free to leave when the officers stood over them on the lawn in front of their house.

         Even if the Kohs were not arrested on the lawn, a reasonable jury could find that they were under arrest by the time they were taken to the police station in Johnson's squad car. Where “the police, without probable cause … forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station … for investigative purposes, ” courts will find a Fourth Amendment violation. Hayes v. Florida, 470 U.S. 811, 816 (1985); see also Sornberger v. City of Knoxville, Illinois, 434 F.3d 1006, 1018 (7th Cir. 2006) (holding that a reasonable jury could find that the plaintiff was under arrest when an officer told her that she “needed” to accompany him to the station, despite the lack of any overt threat of force). In this case, the shocked and grieving Kohs-who, according to their testimony, had already been yelled at, shoved, and loomed over by multiple uniformed police officers-were “escorted” to Johnson's squad car by two officers, who never asked whether the Kohs wanted to go to the police station. PSOF ¶ 6; Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 41:18-42:12; Exh. 82, Mar. 22, 2010 Pretrial Hr'g Tr. 64:8-65:14 (sealed). The Kohs testified that this “escort” involved yet more physical force, claiming that the officers held their arms while bringing them to the car and “shoved” or “pushed” them inside. NDSOF ¶ 16; Exh. 12, Mar. 22, 2010 Pretrial Hr'g Tr. 62:1-12; Exh. 17, Hyung Seok Koh Dep. Tr. 364:10-365:18. In the car, the Kohs even made explicit requests not to be taken to the police station (they asked again to go to the hospital) and were ignored. PSOF ¶ 4; Exh. 10, Nov. 13, 2009 Pretrial Hr'g Tr. 45:18-20, 52:11-14, 58:3-14; Exh. 11, May 11, 2010 Pretrial Hr'g Tr. 74:7-75:13; Exh 82, Mar. 22, 2010 Pretrial Hr'g Tr. 63:2-11, 73:21-24 (sealed).[23] All of these actions-particularly given the Kohs' apparent difficulty understanding and speaking English-would have given reasonable persons in the Kohs' position good reason to think that compliance was not optional, but required.

         What's more, a reasonable jury could find that the Kohs continued to be under arrest throughout their time at the police station. If anything, the Kohs' inability to leave was reinforced during their time in the police station conference room. According to Mrs. Koh, the door of the conference room where the Kohs were held was kept closed while they were inside. Exh. 12, Mar. 22, 2010 Pretrial Hr'g Tr. 102:16-23. Johnson or other officers watched over the Kohs the entire time. NDSOF ¶ 44; Exh. 9, Johnson Dep. Tr. 220:2-13. The officers also denied the Kohs' requests to make phone calls-indeed, Deputy Chief Ross explicitly instructed Johnson not to allow the Kohs to make calls until a police translator could listen in. PSOF ¶ 11, Exh. 134, Transcript of NPD Audio Recordings at 11-12; Exh. 103, Ross Dep. Tr. 82:17-84:6 (Ross ordered Johnson to wait for a translator “[s]o the officers would be able to know what was said.”). The Kohs' inability make calls effectively left them stranded at the police station. The Kohs were brought to the station in Johnson's police vehicle; when they arrived it was around 4:00 a.m. on a cold April morning.[24] If they could not call for a ride, the Kohs had no reasonable way to leave the station (short of asking the officers who arrested them for a lift). In view of these facts, a jury could easily find that the Kohs remained under arrest from the time the officers arrived at the house through the entirety of their time at the police station.

         All of these facts also prevent the Court from finding that the arresting officers are entitled to qualified immunity as a matter of law. To avoid judgment on qualified immunity grounds, the Fourth Amendment right that the Defendants allegedly violated must have been “clearly established” as of the time of the alleged arrest. Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2011). The “clearly established” inquiry entails examining the right “in a particularized sense, rather than at a high level of generality.” Alicea v. Thomas, 815 F.3d 283, 291 (7th Cir. 2016). Ultimately, the question for qualified immunity “is whether the state of the law at the time that [the Defendants] acted gave [them] reasonable notice that [their] actions violated the Constitution.” Roe, 631 F.3d at 858.

         A reasonable officer would have known that pushing on the Kohs' shoulders and directing them to sit quietly on the ground outside of their house before taking them to a police car and driving them to a police station constituted an arrest under the Fourth Amendment. See Hayes, 470 U.S. at 815-16; Sornberger, 434 F.3d at 1017-18. Indeed, the officers' actions read like a checklist of the factors that the courts have set out for evaluating whether a suspect is under arrest. In United States v. Scheets, for example, the Seventh Circuit noted that factors to be considered in the arrest analysis include:

[W]hether the encounter occurred in a public or private place; whether the suspect was informed that he was not under arrest and free to leave; whether the suspect consented or refused to talk to the investigating officers; whether the investigating officers removed the suspect to another area; whether there was physical touching, display of weapons, or other threatening conduct; and whether the suspect eventually departed the area without hindrance.

Scheets, 188 F.3d at 836-37. Running through the list, the Northbrook officers ordered the Kohs to leave their home; never suggested that the Kohs were free to leave; ignored the Kohs' requests to go to the hospital; removed the Kohs from their home to the police station; pushed and shoved the Kohs; yelled at Mr. Koh to “shut up”; and kept the Kohs under police supervision at the station instead of releasing them. On these facts, a reasonable officer would have known that the Kohs were under arrest even on their front lawn (by that time, the officers had verbally and physically intimidated the Kohs, restricted their freedom of movement using physical force, and denied their requests to move). And a reasonable officer certainly would have known that the Kohs were under arrest by the time they were taken to the police station and held there. So qualified immunity cannot shield the Defendants on this element of the false arrest analysis.

         2. ...


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