United States District Court, N.D. Illinois, Eastern Division
FRANCISCA FALCON, as Representative of the Estate of RUBY FALCON, Deceased, Plaintiff,
CITY OF CHICAGO, a municipal corporation; DANIELLE DEERING #13716; ALSIP RESTAURANT AND LOUNGE, INC. d/b/a Bar 122; and VPEN, INC. d/b/a 115 Bourbon Street, Defendants.
OPINION AND ORDER
L. ELLIS UNITED STATES DISTRICT JUDGE.
the early morning of July 30, 2016, Ruby Falcon
(“Ruby”) was shot in the head with a bullet from
the service weapon of off-duty Chicago Police Officer
Defendant Danielle Deering. Francisca Falcon
(“Falcon”), as the appointed representative of
Ruby's estate, brings this case on behalf of Ruby's
estate, alleging that Defendant City of Chicago (the
“City”) wrongfully caused Ruby's death by
failing to adequately train and supervise Deering with
respect to the proper storage and use of her service weapon
while off-duty and consuming alcohol (Count II) and that the
City caused a violation of Ruby's Fourteenth Amendment
right by maintaining widespread customs and practices that
led to a culture among Chicago Police Officers that they may
carry and improperly secure their firearms while consuming
alcohol off-duty without fear of consequences (Count V), in
violation of 42 U.S.C. § 1983. Falcon also brings claims
for wrongful death, negligence and battery against Deering,
as well as claims for violations of the Illinois Dram Shop
Act against the two bars at which Ruby and Deering consumed
alcohol on the night in question: Alsip Restaurant and
Lounge, Inc. d/b/a Bar 122; and VPEN, Inc. d/b/a 115 Bourbon
Street. The City now moves to dismiss  Counts II and V.
Because the Court finds that Falcon did not provide a legal
basis under state law for her wrongful death claim in her
response to the City's arguments in favor of dismissal of
Count II, the Court grants the motion to dismiss that count.
But, the Court denies the motion to dismiss Count V because
Falcon has adequately pleaded a widespread custom or practice
claim under Monell v. Department of Social Service of New
York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
29, 2016, Deering and Ruby spent the evening drinking at two
bars, 115 Bourbon Street and Bar 122. Deering, an off-duty
Chicago Police Officer, was still carrying her loaded firearm
in a holster while the two were drinking at the bars.
Throughout the course of the evening, Deering became
intoxicated. Late on July 29 or early on July 30, the two
women traveled to Deering's home in Chicago. While there,
at approximately 4:20 a.m. on July 30, Deering removed her
loaded firearm from its holster and placed it on the kitchen
counter. At or around the same time, the firearm
discharged and the bullet struck Ruby in the right
side of her head, killing her.
and all other Chicago Police Officers are subject to Chicago
Police Department general orders that require them to safely
handle and secure their firearms while off-duty.
Additionally, the general orders require police officers not
to carry a firearm while off-duty if they are consuming
alcohol. Despite these general orders, in the seven years
preceding the incident in this case, at least three
individuals were shot in the homes of off-duty Chicago Police
Officers while those officers were intoxicated. The City was
aware of these incidents at the time of the incident in this
case. Falcon alleges that the Chicago Police Department's
failure to supervise, discipline, or train its officers in
the proper handling of firearms while intoxicated off-duty
has led to a culture among Chicago Police Officers that they
may carry firearms while consuming alcohol with no fear of
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion
to dismiss, the Court accepts as true all well-pleaded facts
in the plaintiff's complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678, 129 S.Ct. 1937.
City moves to dismiss Counts II and V of Falcon's
complaint. The Court addresses them below in the same order
as the parties' briefs.
COUNT V: SECTION 1983 CLAIM
Count V, Falcon alleges that the City's policies and
customs resulted in Ruby's death and violated her rights
to bodily integrity under the Fourteenth Amendment to the
Constitution. Specifically, Falcon states that the City
failed to train, discipline, and supervise its employees in
the proper off-duty storage and security of service weapons
and that the City failed to adequately supervise, discipline,
and train its officers in the proper procedure for carrying,
displaying, or using service weapons during or subsequent to
the consumption of alcohol. Falcon asserts that these
failures created a culture among Chicago Police Officers,
including Deering, that they could carry their service
weapons off-duty while they consumed alcohol without fear of
consequence. Furthermore, Falcon states that the City was
aware at the time of Ruby's death of three prior
incidents in which citizens were shot in homes of off-duty
police officers who were intoxicated.
prove liability against the City under Monell,
Falcon must show that (1) Ruby suffered a deprivation of a
constitutional right; (2) as a result of either an express
municipal policy, widespread custom, or deliberate act of a
decision-maker with final policy-making authority for the
City; which (3) was the proximate cause of her injury.
See Ovadal v. City of Madison, 416 F.3d 531, 535
(7th Cir. 2005). In short, Falcon may bring a § 1983
claim against the City if she alleges a municipal policy or
custom was responsible for the deprivation of Ruby's
constitutional rights. Thomas v. Cook County
Sheriff's Dep't, 604 F.3d 293, 306 (7th Cir.
2010) (citing Monell, 436 U.S. at 690). The City now
moves to dismiss Count V, arguing that Falcon has not alleged
facts adequate to establish that Ruby's shooting violated
her constitutional rights or that a municipal policy directly
caused her death.
City asserts that Count V fails to allege a constitutional
violation because Deering was not acting under color of law
at the time Falcon was shot and that the City does not have
an obligation to protect individuals from injuries by private
actors. Falcon counters that this argument misconstrues her
claim, and that she is in fact asserting a claim under
Monell, that the City's policies and customs
themselves were the moving force behind the deprivation of
Ruby's Fourteenth Amendment rights. Because there is no
dispute that Deering was not acting under color of law at the
time Ruby ...