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Kuri v. Folino

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

September 5, 2019

ANTHONY KURI a.k.a Ramsey Qurash, Plaintiff,
JOHN FOLINO, et al., Defendants.


          Honorable Edmond E. Chang United States District Judge.

         Anthony 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.[1] 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 denied.

         I. Background

         The 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.

         A. Kuri's Relationship to the Victims

         Kuri 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.

         At some 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.

         B. The July 23, 2009 Shooting

         On July 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.

         When 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 93:16-94:7.

         Fernandez 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.

         C. Russell's First Interview

         The 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.

         Russell 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.

         D. The Wachaa Tip

         At some point after the shooting, the case was transferred from Szwedo and Valker to the Defendants, CPD Detectives John Folino and Timothy McDermott.

         There 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 533:4-24.

         Around 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.

         Folino 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.

         E. Investigation

         1. The August 1, 2009 Fernandez Interview

         On 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.

         Folino 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 606:21-23.

         2. Russell's Second Interview

         Around 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.

         In any 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.

         3. The Photo Arrays

         The 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 628:16-19.

         Next, 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. Id.

         The 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.

         That 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.

         4. Kuri's Interrogation and Arrest

         On 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.

         During 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.

         Kuri 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.

         Kuri 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 ...

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