United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge.
Kuri brought several federal and state law claims against the
City of Chicago and its police officers after he was charged
with murder, detained for three years in Cook County Jail,
and acquitted at trial. Some of the defendants were dismissed
during the case's journey to trial, and the claims
against the City were bifurcated and stayed. Kuri eventually
went to trial on five claims against two Chicago detectives,
John Folino and Timothy McDermott (in this Opinion, call them
the Defendants). Kuri won all five claims against Folino and
succeeded on four claims against McDermott. The jury awarded
Kuri $3 million for pain and suffering and $1 million for
loss of normal life. The Defendants now bring motions under
Rules 50, 59, and 60 of the Federal Rules of Civil Procedure,
challenging the jury's verdict on various grounds, while
Kuri moves to resume the previously stayed claims against the
City. For the reasons discussed below, all four motions are
events of this case stem from a shooting that took place in
the West Side of Chicago on July 23, 2009, the ensuing police
investigation, and the state criminal trial of Anthony Kuri
on charges related to that shooting.
Kuri's Relationship to the Victims
was born in Chicago and spent most of his childhood in group
homes or with foster parents. Trial Tr. at 223:3-224:23. In
the summer of 2009 (when the fateful shooting happened), he
was 19 years old. Id. at 231:24-25. At certain
points growing up, when he would have nowhere else to stay,
Kuri would stay with a friend named Zae Russell. Id.
at 312:17-21. Russell was a member of a gang called the
Conservative Vice Lords, which, at the time, was somewhat
aligned with another gang, the Latin Kings. Id. at
859:6-11. Tony Fernandez-a close friend of Russell's and
a member of the Latin Kings-was familiar with Kuri and had
seen him hanging out outside of their high school, although
Fernandez knew Kuri by his nickname, “Rowdy.” R.
315, Fernandez Dep. Tr. at 57:3-58:7; Trial Tr. at 859:3-5.
point before 2009, Kuri became a member of a street gang
called the Spanish Cobras. Trial Tr. at 229:12-18; Fernandez
Dep. Tr. at 58:13-21. In the summer of 2009, Kuri, Russell,
and Fernandez all spent time in the East Albany Park area of
Chicago, near the intersection of Lawrence and Lawndale. This
was known to be a dividing line between Spanish Cobra
territory and Latin Kings territory. Trial Tr. at 859:12-17.
The July 23, 2009 Shooting
23, 2009, Fernandez and Russell were riding around in
Fernandez's minivan with some friends, including Guarav
Patel, who was driving the van. Fernandez Dep. Tr. at
63:17-64:7, 65:1-10. At least some of the men in the minivan
were members of either the Latin Kings or the Conservative
Vice Lords. Trial Tr. at 470:7-12. At some point, the van
approached the intersection of Lawrence and Lawndale, where
the passengers inside encountered two members of the Spanish
Cobras who went by the names “Chino” and
“Funk.” Id. at 470:13-17. Words and gang
signs were exchanged between the two groups, but eventually
the men in Fernandez's van drove away. Id. at
470:13-24; Fernandez Dep. Tr. at 66:23-69:18. Everyone in the
van besides Russell, Fernandez, and Patel was then dropped
off, and Russell asked Patel to drive to Russell's house
on Central Park. Trial Tr. at 471:12-24.
the van arrived at the house, Russell was sitting in the back
row, Fernandez was sitting in the middle row, and Patel was
in the driver's seat. Trial Tr. at 471:17-21; Fernandez
Dep. Tr. at 85:18-86:11. Fernandez opened the door to let
Russell out of the van and Russell began to get out.
Id. at 91:7-15. But when Russell looked out to his
left, he saw two individuals approaching the van, which
prompted him to step back inside the van and close the door.
Id. at 91:16-24. Within seconds, and before
Fernandez could get a good look at the two individuals
outside, someone began shooting at the van. Id. at
93:6-15; 95:17-96:3. Russell immediately ducked down in the
van and was able to evade the gunfire. Trial Tr. at
830:12-18. But Patel was shot in the neck. Id. at
830:23-831:2. Fernandez was shot in the leg while trying to
attend to Patel and to drive away. Fernandez Dep. Tr. at
managed to steer the van away from the shooting towards a
group of people around the corner, who called an ambulance
upon seeing the van. Fernandez Dep. Tr. at 94:21-95:1. Patel,
who had already stopped breathing, was taken away in the
first ambulance. Id. at 95:2-9, 105:3-7. A second
ambulance took Fernandez to Illinois Masonic Hospital, where
he was treated for bullet wounds in his leg. Id. at
102:21-103:4. According to Fernandez, Russell did not say
anything to him about the identity of the perpetrators or who
Russell suspected was behind the shooting that night.
Id. at 108:5-10.
Russell's First Interview
first CPD officers assigned to the shooting were Detective
Frank Szwedo and his partner Detective John Valkner. Trial
Tr. at 456:6-24. When they arrived on scene, they found a
blue-and-silver Huffy bicycle lying on the sidewalk. R.
331.10, Evidence Inventory at 1. Szwedo and Valkner then
tried to interview possible witnesses, including Russell.
Russell later testified that the detectives initially placed
him in handcuffs, suggested to him that shots were fired from
inside the car, and said that they “had to take [him]
in for an investigation.” Trial Tr. at 831:18-832:6. It
is undisputed that the handcuffs were eventually removed, and
Szwedo questioned Russell for about ten minutes “[t]o
get his account of the incident.” Id. at
464:5-10, 470:1-2. Szwedo also testified that Russell was
cooperative throughout the interaction and answered all of
his questions. Id. at 464:14-21.
explained to Szwedo that he was driving in a minivan with
Fernandez, Patel, and two other members of the Latin Kings he
did not know by name when, at the intersection of Lawrence
and Lawndale, they had an altercation with two
“Cobras” known as Chino and Funk. Trial Tr. at
470:7-17. Russell said that the minivan then drove away,
dropped off the two other Latin Kings, and then drove on to
Russell's house, where two male “Hispanics”
approached the van and yelled “King Killer.”
Id. at 471:12-472:11. Russell described the men as
wearing white T-shirts and having short or shaved hairstyles.
Id. at 472:22-473:9. At trial, Szwedo explained that
he was probing Russell during this conversation and giving
Russell a chance to explain everything he knew about the
incident. Id. at 472:15-21. He also testified that
Russell's story was consistent with the location of the
van and the 911 call. Id. at 474:4-8. Finally,
Szwedo asked Russell whether he would be able to recognize
the shooters if they were presented to him. Id. at
475:12-16. Russell responded “maybe.”
Id. At the end of the interaction, Russell gave
Szwedo the names of two Spanish Cobras, along with his own
address and phone number. Id. at 474:20-475:5,
475:21-23. At no point during the interview did Russell
mention Kuri's name. Id. at 477:3-12; see
also R. 331.2, 8/4/2009 Supp. Report at 11-12.
The Wachaa Tip
point after the shooting, the case was transferred from
Szwedo and Valker to the Defendants, CPD Detectives John
Folino and Timothy McDermott.
was no evidence presented at Kuri's civil trial about how
or why the case was transferred. Trial Tr. at 537:8-17.
Around this time, Folino was contacted by an informant named
Abdul Wachaa, who claimed to have information about the July
23 shooting. Id. at 549:22-25. Folino did not write
a report documenting his first conversation with Wachaa.
Id. at 550:9-11. Folino testified at Kuri's
civil trial that this tip was his very first interaction with
Wachaa, id. at 539:2-5, but Folino testified at his
deposition that he could not remember whether he had worked
with Wachaa before the Patel murder, id. at
539:13-20. Folino admitted, though, that he used Wachaa as an
informant multiple times afterwards and was still using him
at the time Folino was deposed in this case. Id. at
the same time, on August 3, 2009, Wachaa was arrested for
battery and taken to Swedish Covenant Hospital, where he
encountered CPD Officer Carmen Lopez. Trial Tr. at
1217:15-1218:2; R. 331.5, Lopez Report. Wachaa told Lopez
that he was on the phone with Russell when the shooting took
place in front of Russell's house. Id. at 1.
According to Wachaa, Russell yelled into the phone “Lil
David and Rowdy are in front of my house. They killed Indian
Dude and they shot T.C… Rowdy was on the bike and Lil
David was on the pegs.” Id. Russell also
allegedly told Wachaa that the van was on “Wilson by
the alley by the row houses, ” and then hung up.
Id. Wachaa explained to Officer Lopez that Rowdy and
Lil David were both Spanish Cobras and that he had heard
about an altercation between the Cobras and Latin Kings on
Lawrence and Lawndale that same evening. Id. at 1-2.
Lopez determined that Rowdy was a pseudonym for Kuri and that
Lil David was a pseudonym for an individual named David
Gomez. Id. at 2.
testified at the civil trial that he did not document his
first conversation with Wachaa because the same information
had already been documented in Lopez's report. Trial Tr.
at 550:4-8. Folino admitted that Wachaa's version of the
events- that Russell was on the phone with Wachaa while the
shooting transpired and managed to relay very detailed
information about the incident while ducking from
gunfire-seemed implausible. Id. at 560:5-10. Folino
also testified that Wachaa eventually explained to him that
he heard this information “on the street, ”
id. at 562:21-563:7, although it is not clear that
Wachaa ever retracted his original account (which was that
Russell relayed all this on the phone in real-time). In any
event, the battery charges against Wachaa were dropped on
September 24, 2009. Id. at 1369:1-8. The question of
who first spoke to Wachaa-Folino or Lopez-is highly
contested. See R. 335, Pl.'s Resp. Rule 50, 59
Mots. at 6-7; R. 348, Defs.' Reply at 4.
The August 1, 2009 Fernandez Interview
August 1, 2009, Folino and McDermott visited Fernandez at
Illinois Masonic Hospital. R. 331.3, 8/14/2009 Supp. Report
at 8. This was the first important step the Defendants took
in the case and the first time any CPD detective spoke to
Fernandez. Trial Tr. at 595:22-24, 602:16-18, 1408:4-12.
Fernandez was still in critical condition at the time, so the
detectives did not conduct a “full-blown
interview.” Id. at 1470: 11-16; see also
id. at 600:9-11. According to Folino's police
report, Fernandez told the detectives that he was willing to
cooperate and that he would be able to identify both of the
offenders from the shooting. 8/14/2009 Supp. Report at 8.
and McDermott, however, did not ask Fernandez for a
physical description of the offenders. Trial Tr. at
1036:4-22, 1475:11-14 (“Q: Did you ask him, before you
showed him a photograph, to give you a description of any
people that he might have seen? A. No.”), 1475:20-24
(“Q. Before you showed him the photographs, did you
ever say ‘Mr. Fernandez, I need you to tell me what you
saw. What did they look like?' You never asked him that,
did you? A. No.”). The detectives instead showed
Fernandez two arrays of photos, both dated July 29, 2009.
8/14/2009 Supp. Report at 8; Trial Tr. at 1410:21-23. They
created these arrays based on the descriptions of the
shooters in the original report written by Detective Szwedo.
Id. at 1410:4-10. But Fernandez stated that the
offenders were not present in either array. 8/14/2009 Supp.
Report at 8. He also did not mention the names Rowdy or David
Gomez or anything about a bicycle-with or without pegs-during
this August 1, 2009 interaction. Trial Tr. at 606:10-20,
610:1-5. It is not even clear if Fernandez affirmatively told
Folino and McDermott that he saw the shooter; Folino's
report is silent on this question, and Folino could not
remember at trial if Fernandez said so, one way or the other.
See 8/14/2009 Supp. Report at 8; Trial Tr. at
Russell's Second Interview
the same time, the Defendants went to see Russell to get a
more detailed account of the shooting. Trial Tr. at
836:24-837:1. Folino and McDermott submitted a report on
August 14, 2009 documenting this interaction with Russell. R.
331-3, 8/14/2009 Supp. Report. In the report, Folino states
that the interview with Russell took place on August 2, 2009,
id. at 8, one day after he and McDermott met with
Fernandez at Illinois Masonic Hospital and one day before
Officer Lopez received the tip from Wachaa. Folino later
testified at trial that this interview with Russell actually
took place on August 1, 2009, the same day he and
McDermott met with Fernandez. Trial Tr. at 612:10-613:7.
Folino explained this discrepancy as a “typo” in
his report. Id. at 625:6-13.
event, Folino and McDermott wrote in their report that
Russell identified the two offenders as Lil David and Rowdy,
and that Russell had “known them for a few
years.” 8/14/2009 Supp. Report at 8. The report also
explained that Russell “did not like the way the police
treated him” on the night of the incident and, as a
result, “he refused to say anything regarding his
observations for that night.” Id.
The Photo Arrays
Defendants' August 14, 2009 report goes on to list three
events that took place on August 2, 2009. First, Folino and
McDermott worked with two assisting detectives from a
tactical team focused on the Lawrence and Lawndale area to
identify “Rowdy” as Kuri and “Little
David” as Gomez and then pull their photos. 8/14/2009
Supp. Report at 9. The photo arrays that feature Kuri,
however, are dated August 1, 2009, not August 2, 2009. Trial
Tr. at 623:5-12. At trial, Folino testified that this meant
the photographs of Kuri were printed on August 1, 2009.
Id. at 624:4-10. Folino explained this second
discrepancy in his report as another typo. Id. at
627:9-19 (“Q. Now the way your report wrote it up, you
said on August 2nd, you went to get Rowdy and Gomez's
photos, right? A. Based on the report, yes, but it was August
1st. Q. All right. So we have some more typos you're
saying, right? A. Well, it was all in chronological order. It
looks like it was just a mistake straight down the line. It
was just the one date. Q. So three more typos, right? A.
Well, it's the same date. It was just a mistake, thinking
it was August 2nd, but it was actually August 1st.”).
Folino admitted he had no notes from his meeting with the
tactical team detectives to confirm the date on which they
discussed Kuri and printed his photo. Id. at
the report states that Folino and McDermott took the revised
photo arrays-which included pictures of Kuri and Gomez-to
Fernandez at Illinois Masonic Hospital. 8/14/2009 Supp.
Report at 9. The detectives again did not
ask Fernandez for a physical description of the perpetrators
before showing him the photo arrays. Trial Tr. at 1480:7-20.
According to the report, Fernandez positively identified Kuri
as one of the two offenders from the night of the shooting.
8/14/2009 Supp. Report at 9. Fernandez allegedly
told Folino and McDermott that he observed Kuri “riding
the Huffy bicycle” when another “male Hispanic
that was standing on the pegs of that bicycle, jumped off the
bike and while armed with a handgun fired numerous shots at
occupants of the van … .” Id. The
report also states that Fernandez circled Kuri's picture
on the photo array. Id. Fernandez then told Folino
and McDermott that he was not feeling well and was not able
to look at the second array, so they left. Id.
Finally, still on August 2, 2009, Folino and McDermott went
back to see Russell and presented him with the revised photo
arrays. Id. According to the report, Russell
positively identified Kuri as Rowdy, the individual
“riding the Huffy bicycle with ‘Lil David'
standing on the rear pegs … .” Id.
Russell also circled Kuri's picture on the array.
next day, on August 3, 2009, Folino and McDermott went back
to Illinois Masonic Hospital to present Fernandez with the
second photo array that he had declined to look at the day
before. 8/14/2009 Supp. Report at 10. Fernandez identified
Gomez, but also requested to view larger photographs of the
subjects in the photo array. Id. Folino and
McDermott presented Fernandez with six individual photographs
of the subjects in the original array. Id. Fernandez
identified Gomez from these six photographs and then circled
Gomez's picture. Id.
same day, August 3, 2009, Russell was charged with four
counts of misdemeanor battery. Trial Tr. at 1369:11-12. Those
charges were dismissed with leave to reinstate on September
24, 2009. Id. at 12-14. They were never reinstated.
Id. at 14-16.
Kuri's Interrogation and Arrest
August 5, 2009, CPD officers took Kuri to a police station
and questioned him for at least eight hours. Trial Tr. at
357:6-17; 955:23-956:3. Kuri estimated that he was actually
in custody for a number of days. Id. at 236:5-7. In
any event, Folino testified at the civil trial that Kuri was
not placed under arrest on August 5 because he was still a
witness, rather than a subject. Id. at 718:19-25.
The interview was not videotaped, Kuri was not given
Miranda warnings, and Kuri was not given access to a
lawyer. Id. at 718:23-25, 721:1-25, 729:4-17. At
trial, the Defendants stipulated that they admitted in their
Answer to Kuri's Complaint that Kuri was
arrested, not just questioned, on August 5, 2009.
Id. at 1496:10-22.
the interview, Kuri first denied, but then admitted, that he
knew David Gomez. Trial Tr. at 357:15-358:17. Kuri also told
Folino that, on the night of the murder, he was staying with
friends at a house on Tripp Street in Chicago. Trial Tr. at
1011:1-3; 1077:21-1078:1. Folino eventually spoke with
someone who lived at that address-Teresa Luis-and wrote in a
report that she could not remember if Kuri was at her house
on the night of the murder. Id. at 1011:11-1012:3,
1016:13-1017:25. Indeed, none of Kuri's alibi witnesses
could say definitively that they were with Kuri on the night
Patel was killed (which was now around two weeks in the
past). Id. at 1018:15-18.
was eventually released following the August 5 interview
because there was not enough evidence to charge him. Trial
Tr. at 1504:9-20. Folino also testified that he had tried to
locate Russell on August 5 so Russell could view Kuri in a
lineup, but Folino could not find him. Id. at
953:16-954:4. A few days later, Kuri left Chicago for the
suburb of Rochelle, Illinois. Id. at 378:25-379:24.
On September 8, 2009, Folino and another detective went to
Rochelle to arrest Kuri. Id. at 766:5-14, 1000:3-15,
1514:21-1515:4. Kuri was interrogated until the early morning
hours of September 10, R. 331.4, GPRs at 5, and strongly
denied any involvement in the murder throughout the
interview, Trial Tr. at 239:6-241:4. Kuri demanded a DNA test
after the detectives explained that the test would be able to
determine whether Kuri had made contact with the bike found
on the scene. Id. at 655:2-656:24. He also told
Folino to check the recorded footage from the police
department cameras located around Lawrence and Lawndale from
the night Patel was shot because they would prove he was not
there. Id. at 241:5-14.
was later charged with the murder of Patel and the attempted
murder of Fernandez and Russell. He was sent to a
maximum-security division of Cook County Jail to await the
state trial. Trial Tr. at 267:2-15. Kuri believed he was
facing 60 years to life in prison. Id. at 310:17-21.
He testified at this civil trial that he never considered
taking a plea deal because he knew he was innocent.
Id. at 316:2-10. At the time, Kuri was 19 years old,
5΄6", and around 130 pounds. Id. at
268:5-10; 293:11-12. Kuri told the jury that jail was a
violent place and he had no friends there. Id. at
268:12-21. He was attacked and beaten up multiple times,
including one time when he was choked by another inmate.
Id. at 269:2-7; 273:8-274:25. Kuri described an
occasion when he was handcuffed and then maced by a
correctional officer, id. at 280:7-25, and another
time when he witnessed another inmate brutally beaten in the
shower, id. at 279:3-19. Kuri explained that he did
not seek protective custody while at Cook County Jail because