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Doe v. City of Naperville

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

June 5, 2019

JOHN DOE, [*] Plaintiff,



         Plaintiff John Doe, a minor, alleges that on the night of Halloween 2014, a police officer ordered him into the backseat of a police car, allowed a drunk woman to enter, and did nothing while the woman kissed him, licked his neck, and ran her hand across his genitals. In his third amended complaint, plaintiff sues four defendants: (1) Desiree Fair, the woman who allegedly molested him; (2) James Koukal, the police officer who allegedly ordered him into the backseat; (3) Robert Carlson, the other police officer on the scene; and (4) the City of Naperville, Koukal and Carlson's employer.

         Earlier that evening, plaintiff went to his aunt's house to get an extra pillowcase for storing trick-or-treating candy. Farr, a neighbor, called the Naperville Police Department and said that plaintiff had broken into the house through a window. Koukal and Carlson responded. After they investigated and after they talked to plaintiff, they did not suspect that plaintiff had committed a crime. Plaintiff alleges that: Carlson nonetheless called his aunt to pick him up; Koukal ordered him to stay in backseat of his police car until plaintiffs aunt arrived; Farr asked Koukal if she could enter the backseat to comfort plaintiff; Koukal agreed; Farr entered; Farr molested him; and Koukal did nothing to protect him.

         Plaintiff claims that Carlson and Koukal deprived him of his constitutional rights, 42 U.S.C. § 1983, because they: (1) unreasonably seized him; and (2) failed to protect him from a danger that they created when they let Farr into the backseat. Carlson and Koukal move for summary judgment on both claims. Plaintiff moves for summary judgment on his state-created danger claim.

         Carlson is entitled to summary judgment on plaintiffs unreasonable seizure claim. He only asked plaintiff for his aunt's name and phone number-he did not tell plaintiff that he was in trouble, that plaintiff had to wait for his aunt to come pick him up, or that plaintiff had to wait in the police car. His questions would not have made a reasonable twelve-year-old, African American child feel that he could not leave. It was not Carlson, but Koukal who stopped plaintiff from trick-or-treating, and Koukal who asked plaintiff to get into his police car.

         Carlson is also entitled to summary judgment on plaintiff's state-created danger claim. After plaintiff got into Koukal's car, Farr asked Carlson if she could talk to plaintiff; Carlson told her to ask Koukal. Telling Farr that she would have to ask Koukal for permission did not create a danger or worsen a danger to which plaintiff was already exposed.

         Koukal is not entitled to summary judgment on plaintiff's unreasonable seizure claim. He stopped plaintiff from trick-or-treating, separated plaintiff from his friends, questioned plaintiff about whether he was "trying to get into" his aunt's house, and told plaintiff, "Sit in the car while we call your guardian." A reasonable jury could find that under these circumstances, a reasonable twelve-year-old, African American child would not have felt free to leave.

         Neither Koukal nor plaintiff are entitled to summary judgment on plaintiffs state-created danger claim. Genuinely disputed issues of material fact preclude summary judgment for both parties-a reasonable jury could find, or not find, that Koukal knew Fair was drunk and that Koukal consciously disregarded an obvious risk that she would molest plaintiff. Koukal is not entitled to qualified immunity: when a police officer confines a child to the backseat of a police car and lets in a drunk and hostile adult, the child has a clearly established right to the same level of physical safety that the child would have had if the officer had done nothing.


         The facts below are not genuinely disputed unless otherwise stated. On Halloween 2014, in the early evening, plaintiff-a twelve-year-old, African American boy-was trick-or-treating with three friends. They went to plaintiffs mother's house so that plaintiff could get an extra pillowcase for storing candy. While plaintiff was inside or around the house, Desiree Fair-an adult woman, and one of plaintiff s mother's neighbors-called the police, saying that plaintiff had broken into the house through a window.

         Responding to Farr's call, the Naperville Police Department sent two patrol officers: Robert Carlson and James Koukal. Carlson was a Naperville Police Department veteran with 26 years of service; Koukal was a relative newcomer with less than two years. Before Koukal joined the Naperville Police Department, however, he had been with the Naperville Park District Police for two years and with the United States Army Reserve for about ten years.

         Koukal arrived first. As he approached the house, he was stopped by Farr, who said that she was the caller. Koukal confirmed her name. Carlson arrived next. After he and Koukal cleared the house and saw nothing, they went back to their police cars. As Koukal walked to his car, plaintiff's three friends were across the street. Koukal went to talk to them. Plaintiff was either with his three friends, or he came out of the house soon after. A neighbor told Koukal, "That's John over there." Koukal, understanding the neighbor to mean that plaintiff lived in the house, told the other boys to go home. Koukal did not suspect that they or plaintiff were involved in criminal activity.

         Koukal asked plaintiff who he lived at the house with. Plaintiff said that he sometimes stayed at the house with his mom but lives with his aunt. Koukal believed that plaintiff was either in eighth grade or a freshman in high school. Carlson joined the conversation and asked plaintiff for his aunt's name and phone number. After plaintiff complied, Carlson called plaintiffs aunt, Gwendolyn Upshaw, to tell her where plaintiff was. Upshaw told Carlson that plaintiff was allowed to be at her house. The parties dispute Carlson's response: plaintiff alleges that Carlson commanded Upshaw to come and get plaintiff; Koukal and Carlson allege that Upshaw volunteered to come pick him up. Carlson told Koukal that plaintiff's aunt was coming.

         Koukal either ordered plaintiff to sit in the police car or suggested that plaintiff do so. Koukal opened the back door and plaintiff got in. Plaintiff did not complain and was not handcuffed. Koukal walked to the driver's seat and opened the prisoner screen, which was metal on the bottom and plexiglass on top. Even with the prisoner screen open, he could not see below the chest of backseat occupants. The screen stayed open while plaintiff was in Koukal's car. Koukal told plaintiff that he was not in trouble, that he was not under arrest, and that they were waiting for his aunt to pick him up. Koukal did not, however, tell plaintiff that he could leave.

         A few minutes after plaintiff got into Koukal's car, Farr went to Carlson's car, which was across the street. Farr asked Carlson if she could speak to plaintiff. Carlson said that plaintiff was in Koukal's car, so she would have to ask him. Carlson did not know how Koukal would deal with Farr but had seen piaintiff getting into Koukal's car. Carlson then left for five minutes to use the bathroom at a nearby Walgreens.

         Farr went to Koukal's car. She told Koukal that she was the one who placed the call and said, "I know who this is. This is John." She asked if she could wait with plaintiff because he looked upset. Koukal told Farr that it would be okay. He opened the backseat door for her. Koukal had never met Farr and had not asked plaintiff or his aunt if they knew Farr. He had not asked Farr for her identification and had not checked if she had any outstanding warrants. He also had not asked plaintiff or his aunt for their consent to Farr entering the backseat. He knew, however, that Farr was not related to plaintiff. The parties dispute whether Farr smelled of alcohol-plaintiff testified that she did; Koukal testified that she did not.

         Plaintiff did not tell Koukal that he did not want Farr in the car. Once Farr entered, however, plaintiff started crying. Farr placed her arm around plaintiff and used his sweatshirt to wipe his tears. Plaintiff kept crying. Farr placed plaintiffs arm around her, hugged him, and talked to him. Although all this and the rest of Fair's interactions with plaintiff were captured on a videotape facing the backseat, the parties genuinely dispute the following: Koukal and Carlson's lawyers contend that Farr "tickled plaintiff by pinching the top of his knee"; plaintiff testified that Farr did more than that-she "licked me on my neck, kissed me, and she started rubbing on my private part, like she rubbed her hand across it." The 38-minute videotape is black and white, low-resolution, and obscured at times by Farr's body when she hugs or touches plaintiff. It neither proves nor disproves any party's account of what happened. Plaintiff testified that he was shocked and could not believe that Farr was inappropriately touching him while they were in a police car. He did not, however, tell Farr to leave him alone or tell Koukal that he felt uncomfortable with Farr touching him. Nor did he ask Farr to leave the car or try to leave before his aunt arrived.

         Koukal sometimes looked through the prisoner screen to see what Farr was doing with plaintiff. Because Koukal could not see below their chests, he did not see Farr touch plaintiffs legs. He later testified that he thought plaintiff calmed down after Farr started telling jokes.

         When Carlson came back from the bathroom, he parked in roughly the same place as he had before. At some point, he might have gotten into Koukal's car-if so, he went back to his own car before plaintiffs aunt arrived. When plaintiffs aunt arrived, Koukal walked plaintiff over to Carlson's car, at which time Farr also left the car. Carlson confirmed the aunt's identity and released plaintiff to her.

         Carlson testified that police "generally don't let people walk up on our driver's windows because it's a safety issue," and that Farr "had no business in the call." He also testified that if he had a juvenile in the backseat of his car, he would not place another person in the backseat without running that person's background.

         About a month after the incident, the Will County State's Attorney's Office declined to prosecute Farr for criminal sexual abuse. The Naperville Police Department, after an internal investigation, gave Koukal a written reprimand for violating Policy 26.4.2, Attention to Duty: "Employees shall be properly equipped and attentive to their duties at all times and shall perform all duties assigned to them." Other possible policy violations were considered, but whether the Naperville Police Department ever charged Koukal for violating those policies is unclear. One of those policies was Policy 70.3.4, Separation by Age and Gender: "Juvenile detainees will not be ...

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