Sang Ken Kim v. City of Chicago

• Decision Date: 09 November 2006
• Docket Number: No. 1-05-2684.,1-05-2684.
• Citation: 306 Ill.Dec. 772,858 N.E.2d 569
• Parties: SANG KEN KIM, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation; Neal Jack; and Robert Rutherford, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

858 N.E.2d 569

306 Ill.Dec. 772

SANG KEN KIM, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation; Neal Jack; and Robert Rutherford, Defendants-Appellees.

No. 1-05-2684.

Appellate Court of Illinois, First District, Fifth Division.

November 9, 2006.

The Law Offices of John G. Kelly, P.C., Chicago (John G. Kelly and Gregory R. Ignoffo, of counsel), for Appellant.

Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper and Christopher Norborg, of counsel), for Appellees.

Justice FROSSARD delivered the opinion of the court:

Plaintiff, Sang Ken Kim, spent 3½ years in Cook County jail awaiting trial for first degree murder and rape. Prior to trial, the State dropped the charges against plaintiff and he was released. Thereafter, plaintiff filed suit against the City of Chicago, Chicago police detective Neal Jack, and Chicago police detective Robert Rutherford, alleging that he was coerced into giving a false confession, deprived of access to counsel, and subjected to malicious prosecution. All counts were resolved against plaintiff prior to trial. On appeal, plaintiff contends that the trial court erred in granting defendants' motion for summary judgment on the allegations of malicious prosecution because a genuine issue of material fact exists regarding whether the detectives had probable cause to arrest him and charge him with murder.

BACKGROUND

On April 6, 1997, 17-year-old E.X., who was 21 to 22 weeks pregnant, went to the emergency room at Ravenswood Hospital, complaining of leaking fluid from her vagina. At Ravenswood Hospital, E.X. was seen by Dr. Anthony Caruso, who arranged to have her transferred to the University of Illinois at Chicago Medical Center (UIC).

UIC records show that E.X. was admitted on April 6, 1997, with prematurely ruptured membranes. On the afternoon of April 9, 1997, after extensive discussion with UIC doctors, including Dr. Elaine Chang, who was her principal treating physician, E.X. decided to have labor induced. E.X. was given medication to induce labor at 1:45 p.m. and 7:45 p.m.

Around 8:40 p.m. on April 9, 1997, E.X. reported to medical personnel that plaintiff, who was her boyfriend and the baby's father, had kicked her in the abdomen three times, pushed her, and made her fall, and that afterwards, she began "having watery discharge." Officers from the Chicago police department came to UIC and took a statement from E.X. E.X. told the officers that plaintiff pushed her to the floor, causing her to fall and strike her stomach on a piece of exercise equipment. E.X. said that while she was on the floor, plaintiff kicked her in the stomach "numerous times" and kicked her in the vagina. E.X. also told the officers that she began discharging fluid from her vagina two to three hours later.

E.X. gave birth to a baby boy at 12:14 a.m. on April 10, 1997. He died at 3 a.m.

Chicago police detectives Neal Jack and Robert Rutherford were assigned to investigate E.X.'s complaint against plaintiff. On April 10, 1997, the detectives met with E.X. at UIC. E.X. told the detectives that around 11:30 a.m. on April 4, 1997, she and plaintiff argued at plaintiff's house. E.X. related that during the argument, which was about E.X.'s pregnancy, plaintiff pushed her to the floor and kicked her in the stomach. Twice when E.X. tried to rise, plaintiff pushed or threw her to the floor. When E.X. eventually got up, she went into the bathroom and noticed her underwear was damp. She believed the dampness was amniotic fluid. E.X. further related that around 3 p.m. that day, when she was back home, she noticed that her underwear and pants were again wet with amniotic fluid. She noticed the wetness once more later that afternoon or evening. E.X. told the detectives that she continued to discharge fluid for the next two days. She told the detectives that around 10 a.m. on April 6, 1997, Ann McCormack took her to the emergency room at Ravenswood Hospital. E.X. told the detectives that she was transferred to UIC, where she was treated by Dr. Elaine Chang. Finally, E.X. said that she had labor induced on April 9, 1997, and that a short time after the baby was born, he died.

After interviewing E.X., the detectives spoke with Dr. Chang. Dr. Chang told them that E.X.'s water bag was ruptured when she arrived at UIC. According to Dr. Chang, after she told E.X. that her water bag had been ruptured and explained her options to her, E.X. chose to have labor induced. Dr. Chang told the detectives that the baby was born on April 9, 1997 and died a short time later. According to Dr. Chang, after the amniotic sac was ruptured, it was unlikely that the baby could survive for a long period of time. Dr. Chang also told the detectives that it could not be confirmed that abdominal trauma caused the rupture of membranes.

The detectives then contacted Ann McCormack, who told them that E.X. called her around 10 a.m. on Saturday, April 5, 1997. McCormack drove to E.X.'s residence and picked her up. E.X. stayed at McCormack's house until Sunday morning. On Saturday evening, E.X. reported to McCormack that she was discharging some type of fluid from her vaginal area. McCormack told the detectives that on Sunday morning when E.X. awoke, she was discharging a large amount of fluid. At that time, E.X. told McCormack that the discharge began on Friday evening and occurred several times throughout the day on Saturday.

McCormack told the detectives that she took E.X. to Ravenswood Hospital. Once there, she asked E.X. whether she had fallen before the discharge started. In response to the question, E.X. told McCormack that on Friday she and plaintiff had a fight during which they pushed and shoved each other. E.X. told McCormack that plaintiff picked her up and threw her to the floor a couple of times. When McCormack asked if plaintiff had punched her in the stomach, E.X. said no.

At some point during their investigation on April 10, 1997, the detectives learned that the hospital intended to cremate the baby. The detectives contacted the medical examiner's office, which subsequently ordered and received the baby's body for autopsy.

Around 6 p.m. on April 10, 1997, the detectives called plaintiff and asked him to come to the police station. According to the detectives' report, plaintiff told them that on April 4, 1997, he and E.X. were holding hands and arguing. Plaintiff said he pushed E.X.'s hand away and she fell onto the floor "with her buttocks hitting the floor and her back striking the weight bench." Plaintiff related that he then worked on his car with a friend, whose name the detectives recorded as "Hong Sook." After the interview, plaintiff left the police station.

On April 12, 1997, Dr. Nancy Jones conducted an autopsy on the baby. Dr. Jones indicated in her report that the baby "died as a result of prematurity due to premature rupture of membranes due to maternal blunt abdominal trauma." Dr. Jones listed the manner of death as homicide.

On April 14, 1997, at 12:30 p.m., plaintiff was arrested by two officers not involved in the instant case. Around 2 p.m. that day, Detective Jack and Detective Rutherford interviewed plaintiff. According to the detectives' report, plaintiff related that during his argument with E.X. on April 4, 1997, he pushed E.X. to the floor, went to kick her in the leg but missed, and kicked her in the stomach. According to the detectives, plaintiff said that when E.X. got up, he grabbed her and pulled her back, and that he also kicked her in the thigh.

Between 5 p.m. and 7:30 p.m. on April 14, 1997, E.X. met with an assistant State's Attorney at the police station. After speaking with E.X. and the detectives, the assistant State's Attorney interviewed plaintiff around 9 p.m. Detective Jack was present for parts of the interview. According to the assistant State's Attorney's notes, plaintiff told her he pushed E.X., she fell to the ground, and then he kicked her in the stomach.

Around 10 p.m. on April 14, 1997, the assistant State's Attorney took a written statement from E.X. wherein she repeated her assertion that plaintiff kicked her in the stomach. E.X. further alleged that after kicking her in the stomach, plaintiff forced her to have sex with him. According to the detectives' report, when they asked plaintiff about E.X.'s claim, he initially denied it, but then admitted that he had sex with E.X. but "it was consensual." The report also indicated that plaintiff "admitted that at first she resisted him but after a while she relented."

On the morning of April 15, 1997, the detectives spoke with Dr. Jones, the medical examiner who conducted the autopsy of the baby. Dr. Jones told the detectives that based on the autopsy and a review of the available medical records from Ravenswood Hospital and UIC, she determined the cause of death was prematurity due to premature rupture of membranes due to maternal blunt abdominal trauma, and that the manner of death was homicide.

At 5:30 p.m. on April 15, 1997, the assistant State's Attorney interviewed plaintiff a second time. Detective Jack was present for the interview. Some time between 9:45 p.m. and 10:15 p.m., plaintiff signed a written statement prepared by the assistant State's Attorney. At 12:15 a.m. on April 16, 1997, the assistant State's Attorney approved charges of first degree murder and criminal sexual assault against plaintiff.

In May 1997, a Cook County grand jury indicted plaintiff for first degree murder, simple and aggravated criminal sexual assault, and aggravated battery. Subsequently, plaintiff filed a motion to suppress his written statement, which was denied. In 2000, the assigned trial prosecutor met with E.X., who said that plaintiff had not kicked her in the stomach and that her original story was "something that she and her dad cooked up." Due to E.X.'s partial recantation, the prosecutor decided to dismiss the case against plaintiff.

On October 19,...