United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge
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. R. 133, Second Am. Compl. 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.
For the reasons below, the motions are granted in part and
denied in part.
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).
At the Scene
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). 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.
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.
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.
At the Police Station
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.
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. 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.
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. 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.
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.
Mr. Koh's First Interview
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. Detective Graf responded
that someone would bring him the medications, but that did
not happen.PSOF ¶ 20; R. 289-1, Exh. 85, Mar. 16,
2010 Pretrial Hr'g Tr. 14:3-15:12.
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.
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.
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.
Mrs. Koh's Interview
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.
Meetings Before Mr. Koh's Second Interview
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 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.
Mr. Koh's Second Interview
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.
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.
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 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
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.
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 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. 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.
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.) 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. 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 ¶
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.
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
Standard of Review
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.
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.
Kohs also bring a few state-law claims. Count Six is a
malicious prosecution claim, which alleges that the
Defendants fabricated evidence, withheld exculpatory
information, and subjected Mr. Koh to criminal proceedings
without probable cause. Second Am. Compl. ¶¶ 71-75.
Count Seven is (or was) 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.
Conspiracy and Failure to Intervene
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 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.
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. 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
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.
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. 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?
Timing of the Arrest
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.
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. 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.
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). 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.
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. 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.
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.
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
[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