Draine v. Bauman

• Citation: 708 F.Supp.2d 693
• Decision Date: 16 April 2010
• Docket Number: No. 09 C 2917.,09 C 2917.
• Parties: Edward DRAINE, Plaintiff,v.Chad BAUMAN, Star No. 15110 Unknown Chicago Police Officers, and the City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

708 F.Supp.2d 693

Edward DRAINE, Plaintiff,v.Chad BAUMAN, Star No. 15110 Unknown Chicago Police Officers, and the City of Chicago, Defendants.

No. 09 C 2917.

United States District Court,

N.D. Illinois,

Eastern Division.

April 16, 2010.

COPYRIGHT MATERIAL OMITTED

Kurt Henry Feuer, Kurt Feuer, Attorney At Law, Chicago, IL, for Plaintiff.

Thomas Jon Aumann, Thomas Jon Aumann, City of Chicago, Paul A. Michalik, Derek B. Payette, Dykema Gossett Rooks Pitts PLLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

COLE, United States Magistrate Judge.

Mr. Draine returned home to his house on Chicago's west side to find his front door broken in, his home ransacked, and several items stolen. And he also found a copy of a search warrant the Chicago police had executed the previous night when no one was home. The police broke into the house with a battering ram, and did not find anything. They had the wrong house, courtesy of an anonymous tipster. Lord Mansfield could not have foreseen heroin dealers and police battering rams when he formulated the “knock before entry” rule nearly a quarter millennium ago, but with this case, his fears are made manifest Mr. Draine essentially claims that the police broke into his home, “leav[ing] his family within, naked and exposed to thieves and robbers.” Lee v. Gansel, 98 Eng.Rep. 935, 938 (K.B.1774). He has sued the defendants for a violation of his Fourth Amendment right under 42 U.S.C. § 1983, as well as charging them with willful and wanton conduct by leaving his home unsecured when their search was over. The defendants have moved for summary judgment on both claims.

I.FACTS

As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. Local Rule 56.1 requires a party seeking summary judgment to include with its motion “a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a judgment as a matter of law.” Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008). The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both “a response to each numbered paragraph in the moving parry's statement,” Local Rule 56.1(b)(3)(B), and a separate statement “consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment,” Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. District courts are “ ‘entitled to expect strict compliance’ ” with Rule 56.1, and do not abuse their discretion when they opt to disregard facts presented in a manner that does not follow the Rule's instructions. Ciomber, 527 F.3d at 643; Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). A great deal of the facts in this case are not in dispute. Those that are, concern the condition the police left Mr. Draine's home in-especially his front door-when they left. But the uncertainty surrounding certain of those facts and the undisputed facts relating to the search warrant that preclude the entry of summary judgment.

On March 26, 2009, Officer Bauman was assigned to a police unit that works out of Area 4 of the Chicago Police Department ( Defendants' Joint Ride 56.1(a)(3) Statement of Facts (“ Bef. St. ”), ¶ 4). He first met with “John Doe” at the Eleventh District police station, which is connected to the Area 4 station, out of which he was working. ( Def. St., ¶ 5). A uniformed officer told him that he had someone who wanted to give him some information. Officer Bauman first said that he couldn't remember whether Doe was under arrest (Bauman Dep., at 26-27), but subsequently admitted that he took Doe “back over to the 11th [District]” and left him “in the care of the officers” there and from that was led to believe that Doe was in fact in police custody. (Bauman Dep., at 51-52).¹

Doe was not a confidential informant, or CI, who is usually registered as such and regularly supplies information, often for pay. (Bauman Dep. at 11-15). A “John Doe” might be someone who just comes in off the street, or a neighbor, who has never supplied any information. The information from a CI is usually “a lot better” than from a John Doe. (Bauman Dep. at 15). Officer Bauman conceded that one has to be careful in assessing information from a John Doe. ( Def. St., Ex. G Plaintiff's Ride 56 Response, Ex. E; Bauman Dep., at 11-12, 20-21). Officer Bauman first said he did not even know the John Doe's name, but later said he might have been told his first name, although he did not recall. But he was clear that he certainly did not know “his exact identity.” (Bauman Dep., at 22-23).

So far as he knew, John Doe had never provided information to assist in a drug investigation before. (Bauman Dep. at 35). Doe told Officer Bauman he had been using heroin for more than a year and that he had done heroin the day before. Officer Bauman said he did not recall Doe “acting dope sick.” (Bauman Dep. at 34). Doe told Officer Bauman that the day before, March 25th, he purchased heroin from a black male he described as being 6'5? tall, about 185 pounds, and of medium build. ( Def. St., ¶¶ 6,8). The seller was known as Twan. ( Def. St., ¶ 7). Doe said he went inside the abode and Twan got the heroin from a room at the back of the house. ( Def. St., ¶ 9). Doe claimed that he had made purchases at that house before. ( Def. St., ¶ 8). He did not, however, describe the inside of the house or state the amount of drugs he allegedly saw or purchased or how much he paid for the drugs.² After the buy, he said he snorted the heroin and got high. ( Def. St., ¶ 11).

Officer Bauman could not recall whether Doe knew the address of Twan's house. (Bauman Dep., at 37). He said it was more likely he identified it as “the first building off of, I think, Keeler or whatever ....” (Bauman Dep., at 37). Officer Bauman showed Doe a picture of 4201 West Wilcox that appears on the Cook County Assessor's website, and Doe told him that was the house where he bought the heroin. ( Def. St., ¶¶ 11-12). The parties agree that no one named Twan lived in that house. ( Def. St., ¶ 39). Prior to the encounter with Doe, Officer Bauman had no reason to think that illegal activity of any kind was going on at the place Doe claimed, and he had no information about anyone called Twan dealing dope in the area. (Bauman Dep., at 22-23, 36). Doe could not pick Twan from among pictures shown to him. (Bauman Dep., at 42-46).

Following his meeting with Doe, Officer Bauman completed a Complaint for Search Warrant ( Def. St., ¶ 14), which is a preprinted form document, and then drove Doe to meet with a Circuit Court judge perhaps at a restaurant near the judge's home since it was after hours. Ultimately, Bauman could not say exactly where the meeting occurred but it was clear that it was not at the courthouse or the judge's home. The judge issued the search warrant. ( Def. St., ¶ 15; Bauman Dep. at 41). The warrant authorized the search of “ ‘Twan’ male, black Approximately 25 years old 6'05?, 185 pounds” and the premises at “4201 W. Wilcox Single family residence Chicago, Il. County of Cook.” ( Def. St., ¶ 16; Ex. I). Officer Bauman was to seize “Heroin, to wit, a controlled substance and any documents showing residency, any paraphernalia used in the weighing, cutting, mixing, and packaging of illegal drugs” and “[a]ny money records detailing illegal drug activity.” ( Def. St., ¶ 17; Ex. I).

Officer Bauman drove past the residence at 4201 W. Wilcox with Doe, who confirmed that it had been the site of the drug deal. ( Def. St., ¶ 18). Officer Bauman and a team of other Chicago police officers, including Sergeant John Lucid, executed the search warrant at the residence at approximately 10:45 p.m. ( Def. St., ¶ 22). No one was home at the time. The plaintiff, Edward Draine, had left the house between 4:30 and 5:30 p.m. ( Def. St., ¶ 20). The police smashed in through the front door with a battering ram and entered the home. ( Def. St., ¶ 25). As he entered the dwelling, Officer Bauman noticed a television in the front room. ( Def. St., ¶ 27). He and the other police officers searched the entire residence, looking through drawers and pulling clothes out of closets in an effort to find containers or anything that might contain drugs. ( Def. St., ¶ 28). Their efforts were fruitless; no narcotics, large amounts of cash, or any other indicia of illegal drug selling were found anywhere in the home. ( Def. St., ¶ 29). Nor did they find anyone in the house, including “Twan.” (R. 29). The exercise took between 30 minutes to an hour. ( Def. St., ¶ 30).

As the police left, Sergeant Lucid left their “calling card” a copy of the search warrant ( Def. St., ¶ 31). Officer Bauman testified that he considered the damage they had done to the front door to be “fairly minimal” or “not ... tremendous,” when compared to some of the other doors they had broken through when executing warrants. ( Def. St., Ex. G, Bauman Dep., at 76). At one point in his deposition, Officer Bauman said that he simply closed the door when they left. (Bauman Dep., at 76). He said he didn't remember trying to twist the door knob to see if it locked. (Bauman Dep., at 79). Then, he said he did attempt to twist the “bottom knob lock;” he “checked, it wouldn't twist and then gave a push to the door.” (Bauman Dep., at 79-80). Although the police took a photograph of the door before they battered it ( Def. St., Ex. K), they took no photos of the damaged door. (Bauman Dep., at 80). Officer Bauman was aware that the house was in a high crime area. ( Def. St., ¶ 33), He also allowed that the City of Chicago has a claims department he could have notified to fix the door after the search and secure the home. (Bauman Dep., at 83).

Mr. Draine's daughter was the first to return home about 11:45 p.m. When she did, she found the front door open, and the house...