United States District Court, N.D. Illinois, Eastern Division
SUSIE GARRIT, as administrator of the estate of Darius Cole-Garrit; UNIQUE HATCHET, on behalf of her minor child; DOMONEEC HARRIS, on behalf of her minor child; and FALICIA LEWIS on behalf of her minor child, Plaintiffs,
CITY OF CHICAGO, an Illinois Municipal Corporation; Officer MATTHEW O'BRIEN, #10634; Officer JAMES BANSLEY, #10927; Officer RONNY STURM, #11012; Officer KYLE BURG, #7762, Defendants.
MEMORANDUM OPINION AND ORDER
W. Gettleman Judge
Susie Garrit, as administrator of the estate of Darius
Cole-Garrit, Unique Hatchet, on behalf of her minor child,
Domoneec Harris, on behalf of her minor child, and Falicia
Lewis, on behalf of her minor child, have brought a five
count amended complaint against defendants City of Chicago
and Chicago Police Officers Matthew O'Brien, James
Bansley, Ronny Sturm and Kyle Burg, alleging excessive use of
force against O'Brien and Bansley (Count I); conspiracy
against O'Brien and Bansley (Count II); failure to
intervene against Burg and Sturm (Count III); municipal
liability against the City (Count IV) and loss of consortium
against all defendants (Count V). In a single motion,
defendants Burg and Sturm have moved for summary judgment on
the two counts brought against them (Count II - failure to
intervene, and Count V - loss of consortium), and defendants
O'Brien and Bansley have moved for summary judgment on
Count II (conspiracy). For the reasons described below, the
motion is granted.
during the evening on August 14, 2014, Darius Cole-Garrit,
who was originally from Chicago but had moved to Minnesota,
was playing basketball at Golden Gate Park in Chicago. A
Chevrolet Tahoe drove onto the basketball court. According to
witnesses, the Tahoe had four Chicago police officers in it.
One witness heard one of the officers threaten Cole-Garrit
saying “we got your ass, ” or something similar.
Plaintiff Falicia Lewis claims to have received a call from
Cole-Garrit after the incident, in which he told her that the
police had threatened him.
were patrolling that area in a Chevrolet Tahoe, but deny or
do not recall driving onto the basketball court. O'Brien
was driving, Bansley was in the front passenger seat. Rookie
officers Sturm and Burg were in the backseats. At
approximately 9:30 p.m. the officers saw Cole-Garrit at the
intersection of Forestview and 133rd Street. Cole-Garrit was
riding or straddling a bicycle. The officers shined a spot
light on him, and all four officers testified that they saw
Cole-Garrit point a handgun at them. Prior to seeing the gun,
the officers did not suspect Cole-Garrit of committing a
four officers jumped out of the car to chase Cole-Garrit.
Burg testified that when they jumped out the car was still
moving, so he ran with the vehicle until he could jump in and
put the car in park. He heard gun shots as he was attempting
to enter the vehicle, approximately one to two seconds after
he initially exited. He did not know where the shots came
from but testified that he thought the officers were being
shot at. Once he got the car in park, he saw the other
officers moving toward Cole-Garrit, who was unresponsive on
the ground. The only statement he heard during the whole
incident was “gun” and “drop the
gun.” Burg did not fire his weapon.
testified that when he got out of the car O'Brien was
already running toward Cole-Garrit. O'Brien was about
five feet away in front of Sturm. Sturm testified that he saw
Cole-Garrit raise a gun and point it in the officers'
direction. Sturm then came to a complete stop and pointed his
weapon, but did not fire because O'Brien had stepped
directly in front of him. O'Brien began firing his
weapon. Sturm could not see Cole-Garrit at that point. The
shots came in rapid succession with no break in between.
Sturm did not know where Cole-Garrit's gun was. Sturm did
not see Bansley or Burg and did not know where they were.
began firing at Cole-Garrit almost immediately after
O'Brien began firing. O'Brien heard other gun shots.
Bansley fired five shots and O'Brien fired eleven.
Neither Sturm nor Burg fired their weapons. The officers
recovered a gun approximately ten to fifteen feet from
Cole-Garrit. There were no finger prints or DNA tying the gun
to Cole-Garrit, but it appears to be undisputed that earlier
in the day Cole-Garrit had posted a picture of himself on
Facebook in which he had a similar looking gun.
have moved for summary judgment on Counts II, III, and V.
Summary judgment is appropriate if “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(s); Celotex v. Catrett, 477 U.S.
317, 322 (1986). A moving party can prevail on summary
judgment by either pointing to undisputed facts supported by
the record that demonstrate that it is entitled to judgment,
or it can point to an absence of evidence of an essential
element of the responding party's claim or affirmative
defense. Id. Once a moving party has met its burden,
the nonmovant must go beyond the pleadings and set forth
specific facts showing that there is a genuine issue for
trial. See Fed.R.Civ.P. 56(c); Becker v. Tenenbaum-Hill
Associates, Inc., 914 F.2d 107, 110 (1990). The court
does not weigh conflicting evidence or make credibility
determinations, but considers the evidence as a whole and
draws all inferences in the light most favorable to the
nonmoving party. Green v. Carlson, 826 F.2d 647, 651
(7th Cir. 1987).
genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (186). The
nonmoving party, must, however, do more than simply
“show there is some metaphysical doubt about the
material facts.” Matsushita Elec. Indus. Co. Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“The mere existence of a scintilla of evidence in
support of the [nonmoving party's] position will be
insufficient, there must be some evidence on which the jury
could reasonably find for the [nonmoving] party.”
Anderson, 477 U.S. at 252; see Modrowski v.
Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2003) (The court
must enter summary judgment against a party that “does
not come forward with evidence that would reasonably permit
the finder of fact to find in its favor on a material
Count III, plaintiffs allege that Sturm and Burg failed to
take reasonable steps to prevent O'Brien and Bansley from
shooting Cole-Garrit. A police officer who is present and
fails to intervene to prevent other officers from infringing
the constitutional rights of a citizen is liable under 42
U.S.C. § 1983 if the officer “had reason to know:
(1) that excessive force was being used, (2) that a citizen
has been unjustifiably arrested, or (3) that a constitutional
violation has been committed by a law enforcement official;
and the officer had a realistic opportunity to
intervene to prevent the harm from occurring.” Yang
v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (emphasis in
instant case, there are no facts in the record to support
plaintiffs' claim. First, there is nothing in the record
to suggest that Sturm and Burg knew that excessive force was
being used. Both testified that they saw Cole-Garrit with a
gun. Because there is no evidence that Burg saw the shooting,
he could not have known whether excessive force was being
used. Sturm testified that he saw Cole-Garrit raise a gun
before O'Brien began shooting, who could not see anything
once O/Brien stepped in his way. Thus, Sturm could not tell
whether O'Brien's shooting was excessive.
even if Sturm and Burg did know that excessive force was
being used, the facts indicate that they did not have a
realistic opportunity to prevent it. A “realistic
opportunity” means that the officer had “a chance
to warn the officers using excessive force to stop.”
Miller v. Gonzalez, 761 F.3d 822, 826 (7th Cir.
2014). In the instant case, the whole incident took place in
a matter of seconds and ...