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Blackmon v. City of Chicago

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

January 6, 2020

CITY OF CHICAGO, et al., Defendants.


          Hon, Virginia M. Kendall United States District Judge

         Plaintiff Eric Blackmon brings this 42 U.S.C. § 1983 suit alleging several constitutional violations and state law violations by Defendants City of Chicago (the “City”) and Chicago Police Officers Gregory Jones, James Sanchez, and Eugene Schleder (together, the “Officers”) stemming from Blackmon's arrest and murder conviction. Defendants now move to dismiss Blackmon's malicious prosecution claim (Count V) under Rule 12(b)(6) for failure to state a claim. For the reasons set forth below, Defendants' Motion to Dismiss (Dkt. 40) is granted and Count V is dismissed without prejudice. If Blackmon wishes to file an amended complaint, he must do so within 21 days of the entry of this order.


         I. Tony Cox's Murder

         The Complaint's well-pleaded facts are presumed true for purposes of this motion and any reasonable inferences are drawn in the Plaintiff's favor. Calderon-Ramirez v. McCament, 877 F.3d 272, 275 (7th Cir. 2017) (citing Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016)).

         On the afternoon of July 4, 2002, Tony Cox was shot and killed by two assailants outside a restaurant at 1143 South Pulaski Road in Chicago. (Dkt. 1 ¶ 15.) Richard Arrigo was standing approximately five feet away from Cox when Cox was shot. (Id. ¶ 19.) Arrigo saw the two assailants escape north on Pulaski Road and turn on Grenshaw Street. (Id.) Arrigo stayed at the crime scene to speak with police officers but could not identify the assailants. (Id. ¶ 25.)

         At the time of the shooting, Lajuan Webb and Latonya Thomas were working at a barber shop next to the restaurant. (Id. ¶ 21.) Both saw portions of the shooting. (Id.) Webb gave his name to a police officer who came into the barber shop after the shooting, but Webb and Thomas were never contacted by police. (Id.) Two other witnesses saw Cox's murder. Frencshun Reece and Lisa McDowell were driving separately on Pulaski Road and were stopped at a red light. (Id. ¶¶ 20, 22.) Reece saw the two assailants shoot Cox, called the police, and remained at the scene to give a statement. (Id. ¶ 20.) Later that evening, the Officers showed Reece a photo array of potential suspects that did not include Eric Blackmon's photo. (Id. ¶ 28.) Reece identified photos of two individuals as “resembling” the assailants. (Id.) Reece was also shown other books of mugshots, one of which contained Blackmon's photo, but she did not identify him as one of these assailants. (Id. ¶ 29.) Lisa McDowell was behind several cars at the intersection and was farther away from the crime scene than Reece. (Id. ¶ 22.) McDowell did not stay at the scene but called the police as she drove away. (Id.) The Officers interviewed McDowell a month after the shooting. (Id.) She said she heard gunshots and saw Cox lying on the ground in front of the restaurant while a Hispanic man stood nearby holding a silver gun. (Id.) She then saw two black men emerge from the north side of the restaurant, and one of the men shot Cox twice while he was lying on the ground. (Id.)

         II. The Investigation and Arrest

         The day Cox was murdered, Blackmon hosted an Independence Day barbecue where twenty to forty people saw him from around 1:00 p.m. until 10:00 p.m. (Id. ¶ 23.) That evening, the Officers learned that a gang leader, George Davis (also known as “Boonie Black”), may have ordered Tony Cox's murder. (Id. ¶ 27.) Over the next few days, the Officers heard from multiple other sources that Boonie Black ordered Cox's murder because Cox owed Boonie Black money. (Id. ¶¶ 30-33.) Others reported that Cox was protecting two individuals who owed Boonie Black a drug debt. (Id.) The Officers also received information that Michael Davis (also known as “Keno”) and an individual known as “Pride” may have been the two assailants who killed Cox. (Id. ¶ 36.)

         On August 29, 2002, two months after the shooting, Officer Sanchez showed McDowell, one of the eyewitnesses, a photo array that included photos of Blackmon and Keno. (Id. ¶ 40.) Blackmon alleges he was included in the array because “he had braids and a former address on Grenshaw Street, and Officer Defendants had a mugshot of him.” (Id.) McDowell identified Blackmon as one of the assailants because she remembered one of the assailants had braids, and Blackmon was the only individual in the photo array with braids. (Id. ¶ 41.) Based on McDowell's identification, Defendant Sanchez issued an investigative alert for Blackmon. (Id. ¶ 42.) On August 31, 2002, Reece, the other eyewitness, was also shown a photo array that included Blackmon's photograph. (Id. ¶ 43.) Reece told the Officers she recognized Blackmon's photo because she had previously seen it in the mugshot book on the night of Cox's murder, but she did not identify him as one of the assailants. (Id. ¶ 43-44.) Arrigo, who was standing next to the victim, was also shown a photo array that included Blackmon's photo. (Id. ¶ 45.) The Officers told Arrigo that “we think we know who did it, ” “we got a photo, ” and that two of the photos were of the assailants, which violated the Chicago Police Department's policy requiring the Officers to tell witnesses that the offender's photo may or may not be in the array. (Id. ¶¶ 45-46.) Arrigo did not identify Blackmon as an assailant. (Id. ¶ 47.)

         On September 5, 2002, Blackmon was arrested without a warrant and taken to a police station for separate live lineups for Reece and McDowell. (Id. ¶¶ 49-51). Blackmon told Officers Jones and Schleder that he was at a barbecue at the time of the shooting and that the other attendees could vouch for his presence there. (Id.) The Officers placed Blackmon in a lineup with Davis (a/k/a “Keno”) and four others. (Id.) Blackmon was noticeably taller than the other men in the lineup and was the only one with braids, which matched McDowell's original description of one of the assailants. (Id. ¶ 52.) Blackmon was called forward to the viewing window three or four more times than the other lineup subjects. (Id. ¶ 53.) Blackmon was also called forward with Davis and instructed to stand back-to-back with him in the viewing window, which none of the other lineup subjects were asked to do. (Id. ¶ 54.) Reece again said she recognized Blackmon only from the mugshot books she saw on the day of the shooting. (Id. ¶ 55). The Officers responded, “we got him” and “slapped hands and told [Reece] that she ‘did a good job.'” (Id.) The next day, Reece returned to the police station and again told the Officers that Blackmon was not one of the assailants. (Id. ¶ 56.) Nevertheless, the Officers responded “we got the shooter” and “you picked him out of the lineup.” (Id.)

         When Officer Jones called McDowell to arrange her live lineup viewing, he told her “we've got someone.” (Id. ¶ 57.) During McDowell's live lineup viewing, the Officers similarly asked Blackmon to move to the front viewing window more times than the other lineup subjects. (Id. ¶ 58.) McDowell identified Blackmon as one of the assailants. (Id. ¶ 59.) After McDowell identified Blackmon, Officer Jones listed Blackmon as using the nickname “Pride” in the report of McDowell's identification, even though he had no basis to do so. (Id. ¶ 60.) Blackmon alleges the Officers knew McDowell's identification was false for three reasons: (1) Blackmon did not match the descriptions of the assailants given by Reece and Arrigo; (2) the Officers received multiple tips linking Cox's shooting to other individuals with no ties to Blackmon; and (3) they falsely reported that Blackmon's nickname was “Pride” in order to bolster McDowell's identification. (Id. ¶ 61.) He also alleges the Officers knew her identification was unreliable because of her limited ability to view the shooting, the length of time that passed between the shooting and her identification, and the suggestive nature of the lineup. (Id.)

         On September 8, 2002, Officers Sanchez and Jones conducted a live lineup viewed by Arrigo. (Id. ¶ 62.) Before the lineup, the Officers showed Arrigo a photo array containing Blackmon's and Davis's photos. (Id.) The live lineup included Blackmon and Davis, who Arrigo recognized from the earlier photo array. (Id. ¶ 63.) Arrigo did not identify any of the lineup subjects and told the Officers the assailants were not in the lineup. (Id.)

         The Officers did not interview Cox's two associates who owed Boonie Black a drug debt and were reportedly the cause of Cox's murder. (Id. ¶ 66.) They also did not interview Webb or Thomas, who saw portions of the shooting from the barber shop next door. (Id. ¶ 67.) They also failed to fully investigate the true identity of “Pride, ” who was reported by multiple sources to be one of ...

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