Childs v. City of Chi.

• Court: U.S. District Court — Northern District of Illinois
• Writing for the Court: Judge Joan B. Gottschall
• Decision Date: 28 March 2017
• Docket Number: Case No. 13-CV-7541
• Citation: Childs v. City of Chi., Case No. 13-CV-7541 (N.D. Ill. Mar 28, 2017)
• Parties: RICKEY CHILDS, individually and as Administrator of the Estate of RICKEY CHILDS, JR., deceased, Plaintiff, v. CITY OF CHICAGO, et al., Defendants.

RICKEY CHILDS, individually and asAdministrator of the Estate ofRICKEY CHILDS, JR., deceased, Plaintiff, v. CITY OF CHICAGO, et al., Defendants.

Case No. 13-CV-7541

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 28, 2017

Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

On the night of Sunday, October 28, 2012, Chicago police officer Pablo Mariano ("Mariano"), who was then on duty, shot sixteen-year-old Rickey Childs, Jr. ("Childs"); the bullet struck Childs in the back of the head. He was pronounced dead at a hospital the next day. Defs.' Joint L.R. 56.1 State [sic] of Uncontested Facts ("Defs.' SOF") ¶ 2, ECF No. 69; see also Defs.' Ans. to 1st Am. Compl. ¶ 8, ECF No. 12 (admitting Childs was pronounced dead at 9:51 p.m. on October 29, 2012.) In this lawsuit, his father, plaintiff Rickey Childs, Sr., ("Childs, Sr.") claims Mariano used excessive force. Childs, Sr., brings claims on his own behalf and as the administrator of Childs' estate. 1st Am. Compl. ¶ 2, ECF No. 6. In addition to the § 1983 claim against Mariano, the complaint asserts conspiracy claims under § 1983 and Illinois law; a wrongful death claim under Illinois law; a claim under the Illinois survival statute, 755 ILCS 5/27-6; and a respondeat superior count against the City of Chicago ("the City").

The defendants move for summary judgment. They argue that the undisputed evidence shows that Mariano's use of deadly force was objectively reasonable. Finding material factual disputes over whether Mariano had information from which he could conclude that Childs had a weapon and whether Childs was fleeing, the court denies summary judgment on all but the plaintiff's conspiracy claims.

I. FACTS AND SUMMARY JUDGMENT EVIDENCE¹

Mariano had never seen Childs before the night of October 28, 2012. Pl.'s SOF ¶¶ 48-49, ECF No. 80. That night, two black men wearing ski masks attempted to rob an individual referred to here as C.M.² near 8223 S. Maryland Street in Chicago, Illinois. Pl.'s SOF ¶ 1. C.M. could not see their faces. Pl.'s SOF ¶ 2.

Mariano and another police officer, Robert Gonzalez ("Gonzalez"),³ were patrolling the area in a marked police car. Pl.'s SOF ¶ 3; Defs.' SOF ¶ 7; Mariano Dep. 29:20-30:10. As Mariano and Gonzalez drove north on Maryland, C.M. flagged them down.⁴ See Defs.' SOF ¶¶ 7-8; Pl.'s SOF ¶ 7. He told Mariano and Gonzalez that an attempted robbery had occurred. See Defs.' Reply to Pl.'s Resp. to Defs.' SOF ¶ 9, ECF No. 83.

The parties disagree about exactly what else C.M. told Mariano and Gonzalez. C.M. stated that he "pointed towards the way the incident had happened at [sic]."⁵ Defs.' Ex. C at 9,ECF No. 70. Mariano testified that C.M. pointed to one of two men who were then standing down the street and said something like, "The guy over there with the black hoodie has a gun, he tried to rob me." Mariano Dep. 34:10-19. One of the officers, according to C.M.'s statement, "had seen one of the guys trying to rob [him] running and [the officer] started chasing him." C.M. Statement 6-7. Viewed in a light favorable to the plaintiff, C.M.'s testimony does not make clear whether C.M. communicated to Mariano or Gonzalez that the person who ran was the person who attempted to rob C.M. or whether Gonzalez assumed as much from the fact that the person wearing the black hoodie began to run. See id. More importantly, a reasonable jury could find the following fact from C.M.'s version of the encounter: C.M. never told Mariano and Gonzalez that the person who robbed him was armed. Compare C.M. Statement at 6, and ECF No. 83 at 4 ¶ 9 (stating that it is undisputed that "C.M. told the officers he had been robbed and pointed them in a particular direction"); with Mariano Dep. 34:10-19.

A. The Chase

Mariano and Gonzalez returned to their police car and began driving toward the men at whom C.M. had pointed. See Pl.'s SOF ¶ 12. As the car approached, one of the men ran, and Gonzalez got out of the car and gave chase on foot. See id.; Defs.' SOF ¶ 12.

Mariano described the person who ran as wearing a black hoodie. See Defs.' SOF ¶ 9. Mariano testified that he saw the person in the black hoodie "clinching" the right side of his waistband before he began running; based on that observation, Mariano assumed that he had a gun. Mariano Dep. 39:15-23.

Mariano saw Gonzalez pursue the person in the black hoodie down a gangway.⁶ See Defs.' Resp. to Pl.'s SOF at 26 ¶ 17 (stating that Mariano's testimony does not clarify whether, as the plaintiff contends, the person turned east into the gangway). The court pauses here to note that Mariano did not see Gonzalez for the remainder of the chase and did not know where he was. As far as the record shows, Mariano is the only living eyewitness to the subsequent events of the chase. See Defs.' SOF ¶ 24-25, 32-35 (no other officer was present; Mariano does not recall anyone else in the gangway where he shot Childs; and the plaintiff's other witnesses were not there).

Mariano then drove north to 82nd Street and turned right. Pl.'s SOF ¶ 18. While travelling east on 82nd Street, Mariano saw a person running north (towards 82nd Street) in a north-south alley between Maryland and Drexel. Id. ¶ 19. Mariano thought that this was the person Gonzalez had been pursuing, but he does not know how that person got from the gangway to the alley. Id. SOF ¶ 20. Mariano saw that this person was holding his right waistband; Mariano again assumed the person had a gun. Id. ¶ 21; Mariano Dep. 43:6-44:2. The person reached 82nd Street, turned right (east), and ran along 82nd toward Drexel; Mariano pursued him in his police car. Pl.'s SOF ¶¶ 23-24. The person Mariano was following crossed Drexel and turned right, doubling back south on the east side of Drexel. Id. ¶ 26. Mariano followed, and he saw the person turn left (east) into a gangway. See id. ¶ 27. This is not the gangway in which Childs was shot.

Mariano got out of his car to pursue the individual into the gangway. See Pl.'s SOF ¶¶ 28-29. As he approached the gangway entrance, Mariano used a "cut the pie" tactic; he intended to use the building's corner to shield him as a precaution. See id. ¶¶ 29-30.

Mariano testified that he saw the person he was chasing point a gun at him as he was performing the "cut the pie" maneuver. Pl.'s SOF ¶ 31; Mariano Dep. 46:13-19. Mariano further testified that he heard and smelled a gunshot, but he did not see the person he was chasing fire. Mariano Dep. 46:20-47:8, 51:9-12. The person Mariano was following then ran east into the gangway. See Pl.'s SOF ¶¶ 32, 34. Mariano returned to his car, drove south to 83rd Street, and turned left (east) on 83rd, now traveling in the same direction he had seen the person he was chasing run. See id. ¶¶ 34-35. He turned left at the next intersection and eventually entered the north entrance on 82nd Street of the north-south alley between Drexel and Ingleside. See Defs.' Resp. to Pl.'s SOF at 32 ¶ 37 (stating that the exact sequence of Mariano's turns is not clear from his testimony, but that it is clear that this is where he ultimately arrived).

Mariano got out of his car and started to walk south in the alley. Pl.'s SOF ¶ 38. He saw an individual he believed to be the person he was pursuing jump a fence into an apparently east-west gangway on the alley's west side. Id. ¶¶ 39-40. This person was Childs. Childs began running west in the gangway toward Drexel. Id. ¶ 41. Mariano began climbing a fence between the alley and the gangway to continue the pursuit. See id. ¶ 43. Mariano testified as follows about what happened next:

As I'm trying to jump the fence -- I am getting to the top of the fence is [sic] when he stopped quickly, turned and looked at me shoulder to shoulder. I, um, was scared for my life that he might shoot me again. So I jumped off the fence, pulled my gun out, aimed at him and shot him.

Mariano Dep. 65:4-9. Childs' post mortem examination report states that he sustained a gunshot wound to the back of his head, 3.5" left of the posterior midline. Pl.'s SOF ¶ 50; Plaintiff's Ex. A at 2.

B. The Revolver

A revolver was subsequently recovered in the first gangway, i.e., the one in which, according to Mariano's testimony, Childs shot at him, not in the gangway where Mariano shot Childs. See Pl.'s SOF ¶ 46; Defs.' SOF ¶ 26; Mariano Dep. 69:5-11. That is, the parties cite no summary judgment evidence suggesting that a gun or other weapon was found on or near Childs' body. Ibid.

An Illinois State Police ("ISP") scientist tested Childs' hands for gunshot residue. Pl.'s SOF ¶ 58. They tested negative. Pl.'s SOF ¶ 58.

On a form entitled "Preliminary Firearm Examination" regarding the revolver found in the gangway, the box next to "appears not to function properly" is checked, and someone wrote "Pin missing - unable to cock hammer." Pl.'s SOF Ex. F. at FCRL 000824, ECF No. 80-6. An ISP scientist "who examined the recovered revolver, live cartridges, and spent cartridge case for fingerprints, testified she found no latent impressions that were suitable for comparison to any particular person." Defs.' SOF ¶ 38 (citing Wessel Dep. Ex. J, ECF No. 69-9).

II. SUMMARY JUDGMENT STANDARD

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(a). A genuine dispute as to any material fact exists if "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 (1986). In resolving summary judgment motions, "facts must be viewed in the lightmost favorable to, and all reasonable inferences from that evidence must be drawn in favor of, the nonmoving party-but only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007); Blasius v. Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016) (citing Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2...