El Ranchito, Inc. v. City of Harvey

• Decision Date: 26 June 2002
• Docket Number: No. 00 C 25.,00 C 25.
• Citation: 207 F.Supp.2d 814
• Parties: The EL RANCHITO, INC., an Illinois corporation, and Guillermo and Elisa Rivera, individuals, Plaintiffs, v. CITY OF HARVEY, an Illinois Municipal Corporation, Detective Edison Torres, Star No. 329, Detective Manuel Escalantes, Detective Thomas, Building Inspector Richard Gini, and John Does, Defendants.
• Court: U.S. District Court — Northern District of Illinois

207 F.Supp.2d 814

The EL RANCHITO, INC., an Illinois corporation, and Guillermo and Elisa Rivera, individuals, Plaintiffs, v. CITY OF HARVEY, an Illinois Municipal Corporation, Detective Edison Torres, Star No. 329, Detective Manuel Escalantes, Detective Thomas, Building Inspector Richard Gini, and John Does, Defendants.

No. 00 C 25.

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

June 26, 2002.

COPYRIGHT MATERIAL OMITTED

David Carl Thomas, Chicago-Kent College of Law, Chicago, IL, for Plaintiffs.

Timothy Charles Lapp, Hiskes, Dillner, O'Donnell, Marovich, Lapp, Ltd., South Holland, IL, Michael Jay Marovich, Hiskes, Dillner, O'Donnell, Marovich & Lapp, Ltd., Orland Park, IL, for defendants.

MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

This lawsuit for civil rights violations and malicious prosecution arises in connection with a warrantless search of a bar in Harvey, Illinois. It poses questions of whether a state court ruling in a criminal suppression hearing that the police lacked administrative probable cause for a warrantless search and arrest precludes a federal court from finding otherwise in a civil rights action based on the same incident and whether police should have qualified immunity for illegal searches and protective sweeps of a business establishment conducted in the course of a supposed building inspection. The defendants move for summary judgment, which I grant in part and deny in part.

I.

Guillermo Rivera operates The El Ranchito Bar and Grill ("El Ranchito" or the "bar") in Harvey, Illinois. The bar had a reputation for fights and arrests, extensively documented in the defendants' exhibits. The events that are at issue in this case occurred on May 21, 1998, when City of Harvey Police officers Edison Torres, Manuel Escalantes, Joseph Thomas, and another officer, Marcano, arrived at the bar at around 3.00 p.m. with building inspector Richard Gini and another inspector, Leonard Hamble. Detective Torres testified that the officers and the inspectors did not have a search warrant, but proceeded to investigate the bar, supposedly as part of a building inspection. Pl. Ex. B at 8. Gini testified that businesses in Harvey are inspected annually. PL.Ex B at 35. Guillermo Rivera states that he was out when they arrived, Pl.Ex. A, ¶ 4, although the officers and the inspector identified him as present (see below); I credit his version for the purposes of this motion. Julio Rivera, a bartender, states in an affidavit that he was in the basement getting supplies, Pl.Ex. C, ¶¶ 5-6. Lisa Guillermo was tending bar. Pl.Ex. D, ¶ 2.

The officers and inspectors started with the basement, and when Julio Rivera came up, he was confronted with Detective Thomas's drawn gun. Pl.Ex. C, ¶ 7; B at 21 (apparently misidentifying Julio as Guillermo), 44, 54-55 (same misidentification). Thomas handcuffed Julio Rivera, Lisa Guillermo, Pl.Ex C, ¶¶ 8, 17 & D, ¶¶ 7, 8, 11, 12, and arranged them along the walls, and they also put the roughly eight customers in the bar up against the walls and frisked them, Pl.Ex. B at 11. Officers Torres and Thomas went into the basement. Pl.Ex B at 9-10. The officers' testimony about whether Gini went into the basement is inconsistent. Id. The plaintiffs say that Gini went down first. Pl.Ex. B at 54-55, see also 44. I credit that version for the purposes of this motion. They also say that the officers searched the basement for 30 minutes, referring me to their Exhibit B at 12, but that record citation does not say anything about how long the officers were in the basement. Gini testified that the officers found drugs in the basement within three to four minutes after entering, id. at 45, Detective Thomas says about two to three minutes, id. at 23. The officers say they found about 65 grams of cocaine, lots of currency, and paraphernalia in the basement office, id.; Def.Ex., J at 54; the plaintiff offers testimony that there were no drugs in the building. Pl.Ex. D, ¶¶ 2, 14, Pl.Ex. C at 2, 3, 5, 6, 23.

The officers returned upstairs, and Officers Torres, Escalantes, and Thomas searched the first floor. During the investigation, there was testimony that someone broke open the pool tables, the popcorn machine, and cash registers, Pl.Ex. A. ¶¶ 12-13; C, ¶ 16, D, ¶ 13, and removed about $6,200. The officers deny this. Sometime during the search the operating security cameras were dismantled and the video tapes taken. Pl.Ex. A, ¶ 12. Guillermo Rivera testifies that he arrived while the officers were searching the first floor. Detective Escalantes said, "You're the one we want." Pl.Ex. A. ¶¶ 4-6, 8-9. Guillermo Rivera was cuffed and placed against the wall; $1,300 was removed from his person, as were his keys. Id. These were used to open and inspect the cigarette machine. Id. The plaintiffs say that money was stolen from the cigarette machine. Guillermo Rivera was driven to the police station, and, he testifies, was told that the police had found cocaine in the vehicle he had driven to the bar. Id. at ¶¶ 10-11. He was prosecuted for the drugs allegedly found in his car and in the bar, but on June 1, 1999, the Circuit Court of Cook County suppressed the evidence, holding that the "inspection" had been a pretext for a warrantless search.¹

In January 2000, the plaintiffs filed this lawsuit, alleging an illegal search and seizure under 42 U.S.C. § 1983 (count I) and malicious prosecution in violation of Illinois law (count II). The defendants move for summary judgment. The plaintiffs concede that summary judgment is warranted with respect to the claims of (1) Elisa Rivera and (2) El Ranchito, the claims against (3) the City of Harvey and (4) Officer Marcano, and (5) any events occurring on any dates other than May 21 in count I. The plaintiff also concedes (6) that there is no cause of action under § 1983 for malicious prosecution. Summary judgment is therefore granted as unopposed with respect to these parties and claims.

II.

Summary judgment is proper when the record "show[s] that there is no genuine issue as to any material fact." Fed. R.Civ.P. 56(c). I must construe all facts in the light most favorable to the non-moving parties and draw all reasonable and justifiable inferences in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of fact "exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole." Culver v. McRoberts, 192 F.3d 1095, 1098 (7th Cir.1999).

A.

Julio Rivera and Lisa Guillermo were not disclosed as witnesses. The defendants invoke Rule 37(c)(1), under which exclusion of undisclosed witnesses is "automatic and mandatory unless the party to be sanctioned can show that its violation of Rule 26(a) was either justified or harmless." Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996). Although the nondisclosure was careless, the plaintiffs argue that it was harmless, and I agree. These are not surprise witnesses. Julio Rivera and Lisa Guillermo, employees of El Ranchito, were main actors in the events of May 21, 1998, known to the defendants to be such both then and since, and available and obvious subjects for deposition through the close of discovery. In the interests of fairness to the defendants, however, I allow the defendants to depose Julio Rivera and Lisa Guillermo, the depositions to be taken within three weeks of the date of this order.

B.

I turn to the § 1983 claims. Although the presentation is not the clearest, there appear to be two of these that: (1) the defendants conducted an illegal search of the bar, and (2) made an illegal arrest (seizure) of the plaintiff, also stealing or illegally seizing various money and property from him and his establishment. I set aside the material question of fact about whether the officers seized or took any property that was not contraband from the premises, which depends on whether the jury believes the testimony of the plaintiff, Julio Rivera, and Lisa Guillermo that they did, or the officers that they did not, and consider the search and the arrest. These are connected: if the officers conducted a lawful search and found drugs in the plaintiff's bar, they had probable cause to arrest him. If they found no drugs but planted them in the bar to frame the plaintiff (as he contends), or found the drugs pursuant to an illegal search (as the state court found), there was no probable cause, and the arrest was illegal.

The defendants argue that there was no search. Motion for Summary Judgment at 14-15. The bar was open, they say, and they could come in just like any other patrons. Of course, other patrons don't normally come in, as the defendants admit in response to the plaintiff's statement of additional facts, put the clientele up against the wall and frisk them, and poke around without permission in the basement looking for code violations, drugs, or whatever they were looking for. A rational jury could find that there was a search, as Officer Torres testified at the hearing on the motion to suppress.

The defendants argue as well that Officer Thomas and Inspector Gini were merely "present" at the supposed search, and should be dismissed, presumably for lack of direct involvement, although the defendants cite no legal authority, and that Detective Escalantes was not present. However, the evidence offered at the suppression hearing indicated that Officer Thomas did participate in the search. There is also evidence that Inspector Gini searched the basement. Guillermo Rivera testified that Detective Escalantes was on the scene and searched him when he arrived at the bar. The defendants say that the time sheets show that Detective Escalantes was not working on the day in question, but they do not support this with a Rule 56 reference, as required; and the detective might have been at the bar whether or not he was signed in at work.

With regard to the arrest, the defendants say...