Powell v. City of Berwyn

• Decision Date: 19 September 2014
• Docket Number: 13 C 1859
• Citation: 68 F.Supp.3d 929
• Parties: Otis Powell, Plaintiff, v. City of Berwyn, City of Berwyn Police Officers Steven Lopez, Steven Siciliani, Edward Tovar, and Sergeant Ramon Ortiz, Defendants.
• Court: U.S. District Court — Northern District of Illinois

68 F.Supp.3d 929

Otis Powell, Plaintiff
v.
City of Berwyn, City of Berwyn Police Officers Steven Lopez, Steven Siciliani, Edward Tovar, and Sergeant Ramon Ortiz, Defendants.

13 C 1859

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

Signed September 19, 2014

68 F.Supp.3d 933

Mary Johanna Grieb, April Dominique Preyar, Brendan Shiller, Shiller Preyar Law Offices, Chicago, IL, for Plaintiff.

K. Austin Zimmer, Eric T. Stach, Veronica Bonilla–Lopez, Del Galdo Law Group, LLC, Berwyn, IL, Gregory Robert James, Jr., Devlin Joseph Schoop, Joseph Michael Gagliardo, Laner Muchin, Ltd., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, United States District Judge

Plaintiff Otis Powell has sued the City of Berwyn and Berwyn Police Officers Lopez, Siciliani, and Tovar and Sergeant Ortiz pursuant to 42 U.S.C. § 1983 for violating his constitutional rights under the Fourth and Fourteenth Amendment to the U.S. Constitution, as well as malicious prosecution and conspiracy pursuant to state law.¹ The City of Berwyn and Officers Lopez, Siciliani, Tovar, and Ortiz have moved for summary judgment. For the reasons provided herein, the Court grants in part and denies in part Defendants' motion.²

68 F.Supp.3d 934

Factual Background

The following facts are undisputed unless otherwise noted. On November 11, 2011, Plaintiff Otis Powell was employed by A & R Security as an armed security guard at an Aldi's grocery store. Defs.' LR 56.1(a)(3) Stmt. ¶ 3. Powell's shift started at 9:00 a.m. and ended at approximately 8:00 p.m. Id. Powell left Aldi's and drove his car to his cousin's home for a family party. Id. ¶ 4. Powell was later joined by his fiancée, Ashley Crawford, who, that same day, was returning from an extended stay in Rockford, Illinois, and was going to begin living with Powell at an apartment located at 19th and Euclid, in Berwyn, Illinois. Id. Powell and Crawford left his cousin's home at approximately 2:00 a.m. Id. ¶ 5.

Crawford parked Powell's car on 19th Street, which required Powell and Crawford to cross the street in order to get to Powell's apartment building. Pl.'s LR 56. 1(b)(3)(C) Stmt. ¶ 2; Defs.' LR 56.1(a)(3) Stmt. ¶ 5. After parking, Powell removed a loaded gun in its holster from the trunk of his car. Id. ¶ 6. Powell walked with the holstered gun in his hand as he and Crawford walked down the street toward their building. Id. While driving near 19th and Euclid, Officers Lopez and Siciliani observed Powell walking with a holstered gun in his right hand, and Officer Siciliani reported what they had observed to the police dispatcher before confronting Powell. Id. Plaintiff and Defendants dispute the specifics of what happened next.

According to Plaintiff, he and Crawford were standing in front of his apartment building with his hand on the door, opening the door to the apartment building, when he first noticed Officers Siciliani and Lopez approaching in their police van, otherwise known as a squadrol. Pl.'s LR 56. 1(b)(3)(C) Stmt. ¶ 3. Plaintiff claims Officer Lopez yelled to him, “What the f*ck do you think you're doing?” Id. Plaintiff admits he was holding a holstered gun when he was approached by Officers Lopez and Siciliani and that he heard one of the officers order him to drop his weapon. Id. ¶¶ 4–5. Plaintiff claims he handed his gun over to Crawford who then placed the gun on the ground. Id. ¶ 5. Powell then handed his weapons credentials to the Officers, including his Firearm Owner Identification (“FOID”), Firearm Control card (referred to as a “tan” card), Permanent Employee Registration (“PERC”), and A & R employment cards. Id. Officer Lopez had his gun pointed at Powell until Officer Tovar arrived on the scene about five to seven minutes later. Id. ¶ 7.

According to Powell, immediately upon his arrival, Officer Tovar rushed toward Powell, and Powell felt a shove and grab from the side with multiple hands attempting to take him down. Id. ; Defs.' LR 56.1(a)(3) Stmt., Ex. K, Pl.'s Dep. at 167:17–168:19, 169:12–171:13. Powell heard one of the Officers say “back up,” and then Officer Tovar began pepper-spraying Powell in the face and neck. Id. ¶ 8; Defs.' LR 56.1(a)(3) Stmt., Ex. K, Pl.'s Dep. at 179:18–20, 186:21–24, 194:12–20, 195:10–16. Defendant Officers then commanded Plaintiff to the ground; however, before Plaintiff was able to get himself to the ground, an officer kneed Plaintiff in the back, forcing him to the ground, flat on his stomach.Id. ¶ 9; Defs.' LR 56.1(a)(3) Stmt., Ex. K, Pl.'s Dep. at 212:11–213:12,

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214:4–215:1. Defendant Officers then handcuffed Plaintiff. Id. at 215:15–22. During this entire incident, Plaintiff never pushed, swung at, or even attempted to move toward or run away from Defendant Officers. Defs.' LR 56.1(a)(3) Stmt., Ex. K, Pl.'s Dep. at 187:4–17, 406:9–14.

Defendants recount a different version of the facts. Defendants found Powell uncooperative from the beginning, yelling “I'm a f*cking security guard and I'm allowed to carry a weapon,” after Officers Lopez and Siciliani commanded Powell to place his weapon on the ground. Defs.' LR 56.1(a)(3) Stmt. ¶ 8; id., Ex. C, Lopez Decl. ¶¶ 6–7; Ex. E, Siciliani Decl. ¶¶ 6–7. When Officer Tovar arrived on the scene, he observed a visibly agitated and angry Powell. Id., Ex. I, Tovar Decl. ¶ 3. Powell refused to produce identification and attempted to walk away from Tovar. Id. ¶¶ 4–5. Tovar informed Plaintiff that he was under arrest and instructed him to place his hands behind his back. Id. ¶ 5. In response, Powell pulled his arms away from Tovar and clenched his fist. Id. A short struggle ensued, and Tovar gave Powell a verbal warning that he intended to deploy his pepper spray. Id. ¶ 6. Once Tovar deployed the spray, he moved Powell to the ground. Id. Powell continued to resist Tovar's attempts to handcuff him by pulling his arms away and kicking his legs. Id.

Defendant Tovar prepared a police report concerning the incident, and Defendants charged Powell with the misdemeanor offenses of unlawful use of a weapon (“UUW”) and resisting arrest. Id. ¶ 9; Defs.' LR 56.1(a)(3) Stmt., Ex. B, Defs.' Answer, ¶¶ 34, 38. At Powell's bench trial, only Defendants Tovar and Siciliani testified as witnesses for the prosecution. Defs.' LR 56.1(a)(3)(C) Stmt. ¶ 19. On April 25, 2012, the judge acquitted Plaintiff of both charges. Id. ¶ 18.

Defendant Tovar issued thirty-three parking tickets to Powell's vehicle beginning just two days after Powell's arrest and ending approximately three months later when Powell's vehicle was repossessed. Id. ¶ 20; Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 20.

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). The Court gives “the non-moving party the benefit of conflicts in the evidence and reasonable inferences that could be drawn from it.” Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir.2013) ; see Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Plaintiff sues Defendants under section 1983, which permits an individual to sue for damages for the deprivation of rights “secured by the Constitution and laws of the United States.” Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994).

Analysis

Defendants argue that summary judgment should be granted because: (1) Defendant Officers had sufficient probable cause to arrest Plaintiff; (2) the force used was reasonable; and (3) in the alternative, Defendant Officers are entitled to qualified immunity. The Court addresses each argument in turn.

I. False Arrest (Count II)

Plaintiff alleges that Defendants lacked probable cause for his arrest, and therefore they violated his Fourth Amendment right to be free from unreasonable seizures. Pl.'s Resp. Br. 9. Defendants argue that summary judgment is warranted because they had probable cause to arrest

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Plaintiff. Defs.' Br. 7. Defendants also argue that they are entitled to qualified immunity. Id. at 17. As explained below, the Court finds that Defendants had a lawful basis to arrest Plaintiff for his undisputed possession of a gun while in a public street. Defendants also are independently entitled to summary judgment on this Count on grounds of qualified immunity.

“Probable cause to arrest is an absolute defense to any claim under Section 1983 against police officers for false arrest.” Mustafa v. City of Chi., 442 F.3d 544, 547 (7th Cir.2006). Police officers have “probable cause to arrest when the facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense.” Sheik–Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir.1994)....