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Falcon v. City of Chicago

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

June 6, 2018

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.



         During 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 [64] 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 (1978).


         On July 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[2] and the bullet struck Ruby in the right side of her head, killing her.

         Deering 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 punishment.


         A 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.


         The 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.

         A. COUNT V: SECTION 1983 CLAIM

         In 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.

         To 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.

         1. Constitutional Violation

         The 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 ...

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