Summary
granting summary judgment to defendants where the undisputed facts demonstrated that the decedent had a gun pointed at the defendants, refused to drop the gun, and then advanced on the defendants
Summary of this case from Ball v. CortesOpinion
No. 99 C 7369
January 31, 2001
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter came before the court on Defendants' August 31, 2000 motion for summary judgment. Plaintiff filed a response October 5, 2000; and Defendants filed a reply November 14, 2000. For the reasons set forth below, the court will grant Defendants' motion.
BACKGROUND FACTS
Defendants Jerry Ficaro and Richard Kelly were at all relevant times Chicago police officers, partners assigned to the 21st District tactical team. On February 11, 1999, the defendant officers were on regular duty patrolling the 2300 block of South State Street at approximately 10:55 p.m. A few nights previously, a yet unsolved homicide had occurred at 2310 South State, an occupied, high-rise, public housing project with two stairwells running the height of the building.
According to the officers, they were headed north on State Street when they noticed two men on the west side of the street in front of the 2310 building. The officers claim they saw that one of the men, later identified as Raynard White, had a gun in his hand; and, upon seeing the gun, the officers acknowledged to each other that they had seen a gun. They made a U-turn across State Street; and as they did so, each of the officers observed White look at the car and run into the 2310 building. The officers then got out of the patrol car and ran into the building, chasing White.
The officers stated they observed White enter the south stairwell. Officer Ficaro followed him, and Officer Kelly entered the other stairwell. The officers claim that at each floor they exited the respect stairwells and looked for White; and on several floors, the officers saw each other exit the other stairwell in their search for White. Upon reaching the last floor, the stairwell ended; and Officer Ficaro exited the stairwell, which put him mid-way in a narrow hallway. He claims he saw White, still with the gun in his hand, at the south end of the hallway. Officer Ficaro claims that he pointed his gun at White, yelled "Police!", and repeatedly ordered White to drop his gun. Officer Ficaro further claims that White said no several times and shook his head and that instead of dropping the gun, White advanced toward him.
Officer Kelly claims that as he ran up the final flight of stairs, he heard Officer Ficaro yelling for someone to drop the gun. Upon reaching the hallway, Officer Kelly saw Officer Ficaro backing up and pointing his gun toward the advancing White. Seeing that White still had the gun in his hand, Officer Kelly pointed his gun at him, ordering White to drop his gun. The officers claim that instead of dropping his gun, White raised it and pointed it at the officers. The officers have stated that they believed White was about to shoot and believed that he would kill one or both of them. The officers then fired at White until they saw him fall to the ground. White eventually died from his gunshot wounds. Investigators recovered a .357 hand gun containing five live rounds of ammunition from where White had fallen in the hallway.
Plaintiff Regina White, mother of Raynard White and adminstratrix of his estate, filed a four-count complaint under 42 U.S.C. § 1983 and Illinois state law, alleging claims against the defendant officers and the City of Chicago arising out of the shooting death of her son. Count I alleges that the officers violated White's Fourth Amendment right to be free from excessive force; Count II alleges that the officers' shooting violated Illinois' Wrongful Death Act, 740 ILCS 180/1, et. seq.; Count III alleges a § 1983 claim against the officers for a mother's loss of society; and Count IV alleges a claim against the City of Chicago for wrongful death under Illinois law pursuant to the doctrine of respondeat superior.
STANDARD OF REVIEW
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue exists for trial when, after viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).
The party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. V. Catrett, 477 U.S. 317, 323 (1986); Hedberg, 47 F.3d at 931. If this burden is met by the movant, the non-movant must then set forth specific facts to show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324.
In deciding a motion for summary judgment, the court must read the facts in a light most favorable to the non-movant. Cuddington v. Northern Ind. Public Serv. Do., 33 F.3d 813, 815 (7th Cir. 1994). However, Rule 56 (c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 466 U.S. at 322. A scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion: "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250.
LAW AND ANALYSIS
I. Count I: Excessive Force under 42 U.S.C. § 1983
In Tennessee v. Garner, 471 U.S. 1 (1985), the United States Supreme Court held that an officer's use of deadly force is reasonable as a matter of law if the officer has probable cause to believe that the suspect poses a serious physical threat to the officer or to others.
Thus, if a suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.Id. at 11-12. Citing Garner, the Court in Graham v. Connor, 490 U.S. 386 (1989), held that the Fourth Amendment test of reasonableness governing claims of excessive force "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396. Moreover, the Court held,
The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . and must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.Id. at 396-97.
Where a suspect has threatened an officer with a weapon which could cause serious injury or death, the United States Court of Appeals for the Seventh Circuit has affirmed decisions from this district in which the lower court has granted summary judgment in favor of the officer(s) in excessive force claims. Maravilla v. United States, 60 F.3d 1230 (7th Cir. 1995); Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994); Carter v. Buscher, 973 F.2d 1328 (7th Cir. 1992); Tom v. Voida, 963 F.2d 952 (7th Cir. 1992).
The Supreme Court has also established the doctrine of qualified immunity, which deems governmental officials immune from litigation if their conduct does not violate clearly established, statutory or constitutional rights of which a reasonable person would have known.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The purpose of qualified immunity is to allow for reasonable errors, "because officials should not err always on the side of caution because they fear being sued." Humphrey v. Staszek, 148 F.3d 719, 727 (7th Cir. 1998). "Qualified immunity is designed to shield from civil liability "all but the plainly incompetent or those who knowingly violate the law.'" Hughes v. Meyer, 880 F.2d 967, 970 (7th Cir. 1989) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The court in Humphrey stated,
Officers are entitled to summary judgment on qualified immunity grounds if their actions were not objectively unreasonable at the time they were taken. The court should ask if the officer acted reasonably under settled law in the circumstance, not whether another reasonable, or more reasonable, interpretation of the events can be constructed several years after the fact.Id. at 725 (citations omitted).
To refute the defendant officers' version of the facts, Plaintiff has offered the affidavits of three individuals, Eddie Curtis, Elzia Isaac, and David Jackson. Eddie Curtis is a resident on the seventh floor of 2310 South State Sweet where White was shot. Curtis was able to observe some of the activity that occurred in the hallway through the peephole in his apartment door. Curtis claims that he saw one officer, although he did not know which one, in the hallway facing south. He heard the officer say, "Hold it, motherfucker," at least four times; "Lay on the floor," at least three times; "Take your hands out of your pocket;" and "Get you [ sic] ass on the floor." Curtis also heard gunshots fired; however, he did not hear an officer order White to "put down the gun."
At no time did Curtis see or hear White in the hallway. Because he was unable to see White through the peephole, Curtis can offer no testimony as to what White was doing in the hallway. Most importantly, he cannot not refute the officers' assertions that White had a gun and that he pointed it at the officers. Again, investigators recovered a .357 hand gun containing five live rounds from where White had fallen in the hallway. Therefore, Curtis' affidavit creates no genuine issue of material fact with respect to the defendant officers' claims that they fired upon White in self defense.
Affiant Lizia Isaac was the other person who had been walking with White in the vicinity of 2310 South State. Isaac states that neither he nor White "had any weapons in our possession as we walked down State Sweet on February 12, 1999." Isaac's affidavit, however, creates no genuine issue of material fact regarding whether White pointed a gun at the officers in the seventh floor hallway, as Isaac was not there. Further, Isaac offers no foundation for any personal knowledge as to whether White had a gun in his possession that night, either on the street or later in the hallway. Affidavits must be based upon personal knowledge and a showing that the witness is competent to testify as to the facts stated therein. Fed.R.Civ.P. 56(e). The relevant inquiry here is whether White had a gun in the hallway at the time Plaintiff claims the officers used excessive force. See Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994) (the legally relevant time period for an excessive force claim arising out of a shooting must focus on the threat to the officer at the time of the shooting, in light of what the officer knew then rather than whether the person presented a threat at earlier times during the event). Again, investigators recovered a hand gun from where White had fallen in the hallway.
Finally, David Jackson is a private investigator who took pictures of the hallway after the shooting and found evidence of bullet marks on the south wall "near the floor." Jackson does not testify about the significance of the location of the marks. There is nothing in the affidavit to show that the location of the bullet marks on the south wall bears any relationship to whether White was lying on the floor at the time he was shot or whether he was standing facing the officers. In fact, if White were shot while lying on the floor, there would have been bullet marks on the floor beneath him rather than in the wall behind him.
Reading the facts in a light most favorable to Plaintiff, the court finds that Plaintiff has failed to make a showing sufficient to establish the existence of a genuine issue of material fact and sufficient to oppose Defendants' motion for summary judgment on Count I. Further, even if Plaintiff had made such a showing, the court finds that the defendant officers are entitled to qualified immunity because their actions, as a matter of law, were not objectively unreasonable at the time they were taken.
II. Count II: Wrongful Death under Illinois Law
Pursuant to Illinois' Wrongful Death Act, 740 ILCS 180/1 et. seq., Plaintiff must show that White's death was caused by the defendant officers' "wrongful act, neglect or default . . . 740 ILCS 180/1. Under Illinois law, deadly force by a police officer is justified under a standard similar to the Section 1983 standard:
A peace officer . . . is justified in the use of any force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or such other person . . . .720 ILCS 5/7-5.
In addition, the Tort Immunity Act protects local governmental employees from liability for acts committed in the execution or enforcement of any law unless that act is willful or wanton. 745 ILCS 10/2-202. Willful and wanton conduct is defined in the Act as "a course of action which shows an actual or deliberate intention to cause harm, or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210. Where the evidence does not tend to support an allegation of willful and wanton conduct, summary judgment in favor of the defendant is appropriate. Swift v. Norfolk and Western Railway, No. 94 C 2117, 1997 WL 126837 at *3 (N.D. Ill., March 18, 1997).
As established above, the defendant officers reasonably believed that they were justified in shooting White under both the Illinois standards for use of deadly force by a police officer and in self defense. Thus, they are entitled to summary judgment on Count II. In addition, because there is no evidence to support an allegation that the defendant officers acted willfully and wantonly, they are shielded by the Tort Immunity Act and entitled to summary judgment on Count II.
III. Count III: Loss of Society under 42 U.S.C. § 1983
In order to recover for loss of society under the Fourteenth Amendment, plaintiff White must prove that her child's death was due to the unlawful actions of the defendant officers. See Bell v. City of Milwaukee, 746 F.2d 1205, 1243-47 (7th Cir. 1984). The undisputed facts, however, show that the defendant officers did not unlawfully cause White's death. As a matter of law, the court finds that the defendant officers used force that was reasonable under the circumstances, precluding recovery by Plaintiff for loss of society. Thus, the defendant officers are entitled to summary judgment on Count III.
IV. Count IV: Wrongful Death against City of Chicago under Illinois Law
There is no vicarious liability without primary liability. Gordon v. Degelmann, 29 F.3d 295, 298 (7th Cir. 1994). Having found that Plaintiff has failed to make a sufficient showing in order to refute the defendant officers' motion for summary judgment, the court must find that defendant City of Chicago is also entitled to summary judgment, based on the doctrine of respondeat superior, on Count IV of the complaint.
ORDER
It is hereby ORDERED that Defendants' August 21, 2000 motion for summary judgment is GRANTED.