Rios v. City of Chi.

• Decision Date: 03 March 2021
• Docket Number: Case No. 15 CV 03119
• Citation: 523 F.Supp.3d 1020
• Court: U.S. District Court — Northern District of Illinois
• Parties: Pedro RIOS, Administrator of the Estate of Pedro Rios, Jr., deceased, Plaintiff, v. CITY OF CHICAGO, a municipal corporation, Nicholas Redelsperger and Eric Bellomy, Defendants.

523 F.Supp.3d 1020

Pedro RIOS, Administrator of the Estate of Pedro Rios, Jr., deceased, Plaintiff,

v.CITY OF CHICAGO, a municipal corporation, Nicholas Redelsperger and Eric Bellomy, Defendants.

Case No. 15 CV 03119

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

Signed March 3, 2021

Mark A. Brown, Kellie Jean Snyder, Kevin Andrew Griffin, Lane & Lane LLC, Olivia Anne Sarmas-Ford, Kaveny + Kroll, LLC, Chicago, IL, for Plaintiff.

Jonathan Clark Green, Chicago Corporation Counsel, Caroline Jane Fronczak, Raoul Vertick Mowatt, City of Chicago, Department of Law, Marques Alan Berrington, Chicago Transit Authority, Whitney Newton Hutchinson, Borkan & Scahill, Ltd., Chicago, IL, for Defendant City of Chicago.

Steven Blair Borkan, Timothy P. Scahill, Whitney Newton Hutchinson, Borkan & Scahill, Ltd., Chicago, IL, for Defendants Nicholas Redelsperger, Eric Bellomy.

MEMORANDUM OPINION AND ORDER

JORGE L. ALONSO, United States District Judge In this civil rights case brought pursuant to 42 U.S.C. § 1983 and Illinois law, plaintiff Pedro Rios asserts claims of excessive force, failure to intervene, and wrongful death against the City of Chicago and certain Chicago police officers, one of whom shot and killed his son. Defendants move for summary judgment. For the following reasons, the motion is granted in part and denied in part.

BACKGROUND

Plaintiff's fourteen-year-old son, Pedro Rios, Jr. ("Rios") was walking through Chicago's Portage Park neighborhood shortly before 10 p.m. on July 4, 2014, carrying something tucked into his basketball shorts. As Rios crossed North Cicero Avenue on West Berenice Avenue, he passed in front of a southbound Chicago Police Department Chevy Tahoe. Inside the Tahoe were defendant Chicago police officers Nicholas Redelsperger and Eric Bellomy, who were on patrol. According to the officers, they observed that Rios (then unknown to them) appeared to be attempting to hold or conceal something beneath his clothing as he crossed the street in front of them. The officers believed based on the body language that Rios was concealing contraband, likely a weapon. Officer Bellomy turned the vehicle to pull up beside Rios and attempted to speak with him. Rios ignored the officers’ requests to stop and continued walking eastward along Berenice. Officer Redelsperger stepped out of the Tahoe and commanded Rios to stop. Rios did not stop and instead started to run eastward on the north sidewalk of Berenice, alongside the premises of Alert Protective Services, situated at the northeast corner of Berenice and Cicero. Officer Redelsperger gave chase on foot.

Video from security cameras in the area shows much of what followed. A camera ("Camera 8") perched near the southeast corner of Alert Protective Services, facing west along Berenice, shows Rios running eastward along the sidewalk toward the camera, with Officer Redelsperger in pursuit. At one point just after he starts to run, in video taken simultaneously by another camera ("Camera 6") positioned nearer to Cicero, Rios appears to be clutching something in or near the waistband of his basketball shorts. In the video from Camera 8, Rios continues running east along the sidewalk, and Officer Redelsperger appears to draw his weapon while pursuing him. Rios passes under Camera 8 and out of view of any of the cameras, then reappears approximately 1.5 seconds later in video taken from a camera ("Camera 2") trained on the alley behind Alert Protective Services. When he comes into view of Camera 2, Rios is falling to the ground, and an object falls from his person. He rolls, gets up, and continues running northward in the alley, perpendicular to Berenice and parallel to Cicero, out of the shot of Camera 2 and into view of "Camera 4." Camera 4 shows Officer Bellomy, still driving the Tahoe, accelerate into the alley and swerve in front of Rios, blocking his path and knocking him to the ground. Meanwhile, Officer Redelsperger comes into view of Camera 2, picks up the object, and follows Rios and Bellomy northward into the alley. Rios rises, charges toward Redelsperger, collides with him, and both fall backward. Rios does not rise again.

The object that Rios had been carrying, that he lost in the alley when he fell, and that Officer Redelsperger recovered was a large silver revolver, a .44 Magnum Ruger Super Redhawk. According to Officer Redelsperger, after Rios began to run away from him, Rios continued clutching the right side of his body with his right hand. Officer Redelsperger testified at his deposition that, as Rios approached approximately the middle of the Alert Protective Services building, he saw Rios's left hand cross his body and transfer a large revolver into his right hand while he continued to run eastbound on Berenice. (Pl.’s LR 56.1 Resp. ¶ 39, ECF No. 132.) According to Officer Redelsperger, he saw Rios's body start to turn to the right while raising the gun in the direction of Redelsperger. (Id. ¶ 46.) Fearing that Rios would fire, Redelsperger fired a shot at him. Rios continued to run away, turning north into the alley. Redelsperger continued to pursue him, and when he reached the southeast corner of the Alert Protective Services building, he testified, he saw Rios turn to his left and point the gun at him again. (Defs.’ LR 56.1 Resp. ¶ 25, ECF No. 142.) As he stood near the corner of the building, Redelsperger fired two more shots at Rios. (Id. ; see Pl.’s LR 56.1 Resp. ¶ 56.) Following the shots, Rios fell, losing the handgun, rolled, and ran northward into the alley.

The parties dispute the details of precisely when and where Redelsperger fired the shots and Rios was struck, but it is undisputed that Redelsperger fired three shots, and two of them struck Rios. The first struck him in the left upper back and exited through his left upper shoulder area. The second entered Rios's right lower back above his right hip and lodged in the upper left lobe of Rios's lungs. (See Defs.’ Reply Br. at 10, ECF No. 140.) Rios died at the scene.

Plaintiff's expert, Dr. Simms, opines that Officer Redelsperger's description of the chase and of how he fired when Rios turned his body toward Redelsperger is inconsistent with the wound paths. (Defs.’ LR 56.1 Resp. ¶¶ 41-43.) In particular, according to Dr. Simms, the first shot seems to have occurred while Rios was upright and running squarely away from Redelsperger, and the second occurred while Rios was falling or had fallen, with his body essentially horizontal; the wound paths could not have occurred, Dr. Simms opines, while Rios was upright and turned either to the left or right. (Id. )

ANALYSIS

"The Court shall grant summary judgment 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) ; Wackett v. City of Beaver Dam , 642 F.3d 578, 581 (7th Cir. 2011). A genuine dispute of 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate when the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial." Celotex v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court may not weigh conflicting evidence or make credibility determinations, but the party opposing summary judgment must point to competent evidence that would be admissible at trial to demonstrate a genuine dispute of material fact. Omnicare, Inc. v. UnitedHealth Grp., Inc. , 629 F.3d 697, 705 (7th Cir. 2011) ; Gunville v. Walker , 583 F.3d 979, 985 (7th Cir. 2009). The court will enter summary judgment against a party who does not "come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question." Modrowski v. Pigatto , 712 F.3d 1166, 1167 (7th Cir. 2013). The Court construes all facts and draws all reasonable inferences in favor of the nonmoving party. Chaib v. Geo Grp., Inc. , 819 F.3d 337, 341 (7th Cir. 2016).

" Section 1983 creates a ‘species of tort liability,’ " Manuel v. City of Joliet, Ill. , ––– U.S. ––––, 137 S. Ct. 911, 916, 197 L.Ed.2d 312 (2017) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) ), against any person who, under color of state law, "subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution," 42 U.S.C. § 1983. "The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons ... against unreasonable ... seizures.’ " Manuel , 137 S. Ct. at 917 (quoting U.S. Const. amend. IV ). " ‘A person is seized’ whenever officials "restrain[ ] his freedom of movement.’ " Manuel , 137 S. Ct. at 917 (quoting Brendlin v. California , 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ). "A police officer's use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable." Scott v. Edinburg , 346 F.3d 752, 756 (7th Cir. 2003).

"Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests’ against the countervailing governmental interests at stake." Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Tennessee v. Garner , 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ). In assessing whether an officer used excessive force, courts will consider the totality of the circumstances and analyze the actions of the officer objectively, from " ‘the perspective of a reasonable officer on the scene, rather than with the 20/20 vision...