Horton v. City of Chi.
|30 September 2018
|Case No. 13-cv-6865
|U.S. District Court — Northern District of Illinois
|JARROD HORTON, as Independent Administrator of the Estate of MARLON HORTON, Deceased, Plaintiff, v. The CITY OF CHICAGO, a municipal corporation, CHICAGO POLICE OFFICER KENNETH F. WALKER, Star No. 9191, SHAQUILA R. MOORE, The CHICAGO HOUSING AUTHORITY, H.J. RUSSELL & COMPANY, and MAVERICK SECURITY, INC., Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are: (1) Defendants the City of Chicago and Officer Kenneth Walker's motion for summary judgment  and (2) Defendants Shaquila Moore and Maverick Security Inc.'s motion for summary judgment . For the reasons explained below, both motions,  and , are granted in part and denied in part. Summary judgment is granted in favor of Defendant Walker on Plaintiff's excessive force claim; in favor of Defendant Moore on Plaintiff's failure to intervene, wrongful death, and battery claims; and in favor of Defendant Maverick on Plaintiff's negligent supervision claim. Summary judgment is denied as to Plaintiff's state law wrongful death and battery claims against Defendant Walker; Plaintiff's indemnification and respondeat superior claims against the City; and Plaintiff's respondeat superior claim against Maverick. This case is set for status hearing on October 16, 2018 at 9:30 a.m. In view of the stipulation and agreed order of dismissal as to certain claims and parties  entered on September 28, 2018, Defendant Maverick Security, Inc.'s motion for summary judgment on Counts III through V of Defendant H.J. Russell's crossclaims  remains pending as to the express and implied indemnification only.
The Court takes the relevant facts primarily from the parties' Local Rule 56.1 statements, ,  through , , , and the exhibits attached thereto. The following facts are undisputed except where a dispute is noted. This court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. Venue is proper under 28 U.S.C. § 1391(b).
This action arises out of the fatal shooting of Jarrod Horton ("Horton") on the morning of September 7, 2013 at a CHA property located at 1815 W. Monroe in Chicago, Illinois (the "Property"). Defendant the Chicago Housing Authority ("CHA") contracted with Defendant H.J. Russell & Company ("Russell") to manage the Property. Russell subcontracted with Defendant Maverick Security, Inc. ("Maverick") to provide security services at the Property.1
Two Maverick security guards were on duty at the time of the shooting: Defendant Kenneth Walker ("Walker") and Defendant Shaquila Moore ("Moore").2 At the time of the incident,Walker was also employed as a police officer by the Chicago Police Department ("CPD").3 The Property is located in the district where Walker worked as a CPD officer. Walker finished his shift with the CPD at 11:00 p.m. on September 6, 2013 and began his shift at the Property at midnight on September 7, 2013. As Maverick employees, Walker and Moore were expected to follow certain company rules regarding uniforms and equipment. Maverick required its security guards to carry a weapon, wear a black company sweatshirt, and carry handcuffs. At the time of the incident, Moore was wearing her Maverick-issued black uniform shirt that said "Maverick Security." Walker's clothing did not identify him as a security officer and had no visible CPD insignia. Maverick instructed its security officers to call CPD if needed to deal with issues beyond their ability to handle. Walker had previously dealt with loitering on the property and on one prior accession had called CPD when "there were 'too many guys' loitering."  at 4.
Surveillance cameras on the Property captured some, but not all, of the interactions between Horton, Walker, and Moore on the morning of September 7, 2013. In particular, Defendants have produced videos from cameras located (1) on the exterior southeast corner of the 1815 West Monroe, (2) on the exterior northeast corner of the building, and (3) inside the vestibule of the front lobby pointed out towards the front entrance and parking lot. These videos showinteractions between Horton, Walker, and Moore before and after the shooting, but do not show the exact moment when the shooting itself occurred.
Former CHA security analyst Brian Frost has submitted a declaration stating that on September 7, 2013, he reviewed archived video from the surveillance cameras at the Property, downloaded relevant video to his hard drive, and saved the video to discs which he provided to CPD. Frost explains how the cameras worked. According to Frost, the cameras had motion-activated systems for archiving video footage. When a camera sensed sufficient motion, it archived several seconds prior and many seconds after the motion stopped. The cameras were always recording, but if there was not sufficient motion to trigger archiving to the hard drive, the recording would be permanently erased after a few seconds. Archived recordings from the surveillance cameras contain a timestamp on the bottom, but the timestamp may not be accurate. The cameras do not record audio. According to Frost, the exterior cameras at the property were sensitive to low light conditions and may have been triggered to archive when there was no activity in the frame due to the camera recording in black and white and perceiving the blurriness of the low light conditions as motion.4
Video from the interior lobby surveillance camera (Exhibit M) captured much of the interaction between Horton, Walker and Moore prior to the shooting, beginning at approximately6:31 a.m. In the video, Horton is the male individual wearing a white sleeveless shirt over a green short-sleeved shirt and white pants; Walker is the male individual wearing a white tee shirt and dark pants; and Moore is the female individual wearing a black hooded sweatshirt and black pants.
Archived video from the northeast corner camera (Exhibit N) shows that the camera was positioned facing westbound, recording along the north side of the building, until a timestamp of approximately 6:39 a.m. At a timestamp of approximately 6:39 a.m., the camera mounted on the northeast corner of the building was manually panned to face southbound, recording along the east side of the building. The video shows Horton and Moore after the shooting had taken place, as well as police and fire response; it does not show Horton, Walker, or Moore prior to the shooting.
There is also archived video from the southeast corner surveillance camera (Exhibit O) for the evening of September 6 and morning of September 7, 2013. The video shows the camera facing north, recording the east side of the building at approximately timestamp 6:12 a.m., after which there is a gap in the video until approximately timestamp 6:40 a.m. According to Frost, the arrival of emergency vehicles at approximately 6:40 a.m. on the timestamp triggered archiving of video on the southeast corner camera, but the presence of people in front of the building was insufficient to trigger archiving. The video also shows Moore, Walker, and Horton for brief periods in the hours before the incident, coming and going from the building.
Plaintiff denies that the videos produced in discovery and attached as exhibits to Defendants' motions for summary judgment are in fact the original, authentic, unaltered surveillance camera video recordings that were recorded to the on-site hard drive or that Frost reviewed and downloaded. Instead, Plaintiff contends that footage from the two outside cameras "was tampered with after the shooting removing the exact time period when Walker shot Horton," and asserts that he will be "seeking an adverse spoliation inference at trial that if the video existedit would show that Horton did not lunge for Walker's gun."  at 20. Plaintiff provides at least four reasons for questioning the authenticity of the videos. First, Plaintiff contends that the videos at issue contain "bookmarks" with comments, and therefore clearly are not copies of the original videos recorded by the surveillance camera. The vestibule video, for example, is bookmarked when both Walker and Horton arrive at the building, and at the time of the shooting, with Office of Emergency Management and Communication ("OEMC") event numbers and CPD Records Division numbers. Plaintiff argues that Defendants cannot explain who placed these bookmarks on the video recordings, why they did so, or when this occurred. According to Plaintiff, Frost speculated that an OEMC employee entered these bookmarks, but then testified that OEMC only had the ability to access live feeds of CHA surveillance cameras and does not have the ability to retrieve or save videos.
Second, Plaintiff asserts that the videos from the southeast and northeast cameras have gaps that suggest they have been altered in some way. The northeast corner surveillance camera video recording has a gap around the time of the shooting from 6:30 a.m. to 6:38 a.m. The southeast corner surveillance camera video recording has a 28-minute gap that coincides with the time of the incident. The southeast camera recorded hours of footage from approximately 11:50 p.m. the night before until 6:12 a.m. on the day of the shooting without any gaps or skips (except for one gap from 6:06 a.m. to 6:12 a.m.). The camera briefly reactivated at 6:12 a.m., and then the recording jumped to 6:40 a.m., when it shows Horton laying on the ground after the shooting had occurred. According to Plaintiff, CHA has not been able to provide a credible explanation for the missing footage from this camera. Plaintiff disputes Defendants' assertion that there was no motion sufficient to trigger archiving during the 28-minute gap in the video from the southeast corner surveillance camera and points out that the recording from 11:50 pm on September 6, 2013 through...
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