Case: 1:12-cv-07580 Document #: 157 Filed: 02/26/14 Page 1 of 33 PageID #:3118

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

D.Z., by his Next Friend, A. THOMPSON Plaintiff, v. MARK BUELL Defendant.

) ) ) ) Case No. 12 C 7580 ) ) Magistrate Judge Daniel G. Martin ) ) ) ) ORDER

Defendants Motion for Summary Judgment [76] is granted. STATEMENT Plaintiff D.Z., a minor, brought this action against the City of Evanston and Evanston Police Officer Mark Buell by his Next Friend, A. Thompson. D.Z. alleges that Officer Buell violated his Fourth Amendment rights on August 30, 2012, when Buell detained him in connection with a reported burglary. The Fourth Amendment allegations include claims for unreasonable search and seizure and for false arrest.1 D.Z. also alleges various state law claims. Plaintiff originally raised a failure to train claim against the City of Evanston pursuant to Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). The Monell claim was later dismissed. This case was first assigned to District Judge Marvin Aspen. The parties

Count I in Plaintiffs Complaint brings both of these allegations under the Fourth Amendment, though earlier portions of the Complaint cite both the Fourth and the Fourteenth Amendments. Under some circumstances, the Fourteenth Amendment can be a basis for a due process claim when a plaintiff has been improperly detained. The Court considers Plaintiffs claim as brought under the Fourth Amendment, as Count I does not cite the Fourteenth Amendment.

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later consented to have this Court conduct all proceedings, including an entry of final judgment. 28 U.S.C. 636(e); N.D. Ill. R. 73.1(c). Officer Buell now asks the Court to enter summary judgment on his behalf. A. Factual Background 1. The Local Rule 56.1 Submissions Local Rule 56.1 requires the party moving for summary judgment to submit a statement of material facts (SOF) that it believes are uncontested. The submission must include citations to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in [each] paragraph. N.D. Ill. R. 56.1(a). The Rule stresses that only material facts should be included. N.D. Ill. R. 56.1(a)(3). The nonmoving party must then file a response to that statement, together with similar evidentiary support that the non-moving party believes demonstrates the existence of a material issue of fact. N.D. Ill. R. 56.1(b)(3)(B). The non-moving party may also file a statement of additional facts. N.D. Ill. R. 56.1(b)(3)(C). Courts are entitled to expect strict compliance with these rules. See Shaffer v. Am. Med. Assn, 662 F.3d 439, 442 (7th Cir. 2011); Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009). Each party in this case raises serious objections to the others Rule 56.1 submissions. Defendant claims that Plaintiff has attempted to distort the record by making unsupported arguments in his Rule 56.1(b)(3)(B) response and by addressing what are largely non-material fact issues. (Reply at 3-4). Plaintiff goes even farther by alleging that Defendants statement of facts creates an absolute distortion of the record, contains statements that are absolutely false, and generally shows gross shortcomings and [a] mischaracterization of events. (Pls. SOF at 17, 20, 27). Plaintiff also accuses 2

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Defendant and/or his City of Evanston Police partner Russell Brown of lying, and suggests that Buell may have submitted an untruthful sworn declaration prepared with the help of his counsel. (Pls. SOF at 20, 21). After carefully examining all of the citations included in both parties Local Rule 56.1 submissions, the Court finds that Defendant has not acted with an improper motive. It is true that Buell relies heavily on his own sworn declaration. But that is not inherently problematic, despite Plaintiffs claim that a Summary Judgment affidavit is not a Homework assignment or a Re-Do event. (Pls. SOF at 27). A party may rely on a self-serving affidavit in summary judgment proceedings as long as the record supports the affiants statements. See Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004). Conclusory statements, or declarations that contradict prior deposition testimony, do not support a partys affidavit. Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004); Minn. Elevator, Inc. v. Imperial Elevator Servs., Inc., 758 F. Supp.2d 533, 539 (N.D. Ill. 2010). Plaintiff earlier filed motions to strike the declarations of Buell, Officer Russell Brown, and Officer Amy Golubski on these grounds. Those motions were denied because Plaintiff did not show any material conflict between the declarations and these affiants prior deposition testimony or other sworn statements. (Docs. 139, 153). The broader evidentiary record also does not conflict with Buells statement, except where specifically noted below. Plaintiff has not presented any reason for finding that Defendant has lied or attempted to mislead the Court. Nothing suggests that Defendants counsel played an improper role in preparing Buells declaration. Buells complaints about Plaintiffs Rule 56.1 filings present a more complex set of 3

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issues. The Court agrees that the submissions do not meet the exacting obligation[s] of Local Rule 56.1.2 Waldridge v. Am. Hoeschst Corp., 24 F.3d 918, 922 (7th Cir. 1994). See also Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006); De v. City of Chicago, 912 F. Supp.2d 709, 712 (N.D. Ill. 2012). Local Rule 56.1 is not a mere formality. Nor is it an opportunity to argue a partys case or to present evidentiary-based discussions that are more appropriate to a partys brief. Instead, the rule is designed to conserve a courts time and resources by identifying and organizing the evidence. See Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000). District Courts have broad discretion to require that parties strictly comply with Local Rule 56.1. Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008). A partys failure to do so can have serious consequences. At the extreme end, a court may enter summary judgment when the non-moving party has not submitted a fact statement in the manner called for by the Local Rule. Waldridge, 24 F.3d at 922. A court can also strike the non-moving partys response. See Hancock v. Broullard, 2011 WL 5141510, at *4 (N.D. Ill. Oct. 25, 2011). Although Plaintiffs submissions do not always comply with Local Rule 56.1, striking his filings or entering summary judgment on that ground would be counterproductive. The summary judgment record in this case is long and, as Defendant complained in an earlier
2

A number of the citations that Plaintiff relies on in his statements do not contain the information that he asserts. (e.g. Ex. 31 in Pls. SOF 20; Exs. 1:1, 10, 56 et al. in 7(B); Ex. 15 in 7(E); Ex. 15 in 27). Many issues are not material. (e.g. Pls. SOF 9, 19; Pl.s Add. SOF, passim). Plaintiff also relies on statements that do not address the fact allegations that Defendant makes, refers to missing evidence, and speculates on the meaning of the record. (Ex. 75 in Pls. SOF 20; 25; and Exs. 18, 35, 45 in Pls. SOF 29). Page references to the cited exhibits are frequently missing. (e.g. Ex. 31 in Pls. SOF 26; Exs. 24, 24A, 25, 54 in 29). 4

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filing, at times unclear. Plaintiffs Rule 56.1 filings provide an additional tool for navigating this record and bringing order to the evidentiary submissions. In addition, some of Plaintiffs submissions comply with the Local Rule. For these reasons, the Court has fully considered all of Plaintiffs claims and citations in his Rule 56.1(b)(3)(B) and 56.1(b)(3)(C) filings in assessing the facts of this case. All of the evidence has been construed in the light most favorable to Plaintiff, as Fed. R. Civ. P. 56 requires. 2. The Underlying Events On the morning of August 31, 2012, a resident in Evanston, Illinois reported that she had observed a burglar in her home. She described the intruder to a police dispatcher as a young boy, African-American, [wearing] cargo khaki shorts, dark brown T-shirt or [a] dark shirt. (Defs. Ex. E). She also told the dispatcher that she had observed the young man running northbound in an alley. (Id.). The individual who took the call then issued a description of the suspect to police on the dispatch radio. She described him as a black male, probably in his teens, wearing a dark shirt, and khaki cargo shorts. (Id. at 1:18). Officer Mark Buell was one of the policemen who heard the broadcast. He was accompanied in his car by fellow officer Russell Brown. One of the officers noticed an individual whom he believed matched the description of the suspect on a bicycle.3 This fact was then radioed to the police dispatcher.4 (Defs. Ex. E at 3:38; Ex. B at 5-7; Ex. C at

Buell and Officer Brown claim that it was Brown. (Defs. Ex. A at 6; Ex. B at 6). Plaintiff argues that it was Buell himself, but his statement of facts fails to provide any evidence that disputes the officers statements. (Pls. SOF at 9). Defendant claims that Brown saw the suspect and made the radio call. Plaintiff argues at length that it was Buell and that the distinction creates a jury issue. (Pls. SOF at 10; Resp. at 7-9). The Court disagrees. The specific identify of the officer is not a material issue of fact for summary judgment purposes. 5
4

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5-7). The officers were not able to catch up to the cyclist. Shortly thereafter, another officer requested a repeat of the suspects description. The radio dispatcher sent out a statement that the person in question was a male, black juvenile with a dark shirt and khaki, uh, shorts or pants, cargo pants. (Defs. Ex. E at 4:07). In the meantime, another Evanston police officer had stopped an individual at the intersection of Oakton and Florence Streets. (Defs. Ex. B at 10). Buell radioed in that the victim should be brought to that location for a show up. (Id.; Defs. Ex. E at 6:30). When the victim arrived, however, she stated that the person who had been stopped was not the intruder she saw in her home. Officer Amy Golubski also radioed in that she had seen a suspect who was riding his bicycle near Chute Middle School. She described him as riding a blue bike and wearing cargo shorts [unidentifiable] dark navy blue or black . . . [and] a light gray tank top, blue cap. (Pls. Ex. 33; Defs. Ex. E at 7:00, 7:30). The cyclist turned out to be Plaintiff. At the time, D.Z. was a 13 year old African-American youth, approximately five feet and six inches tall, and wearing navy blue cargo pants with a gray shirt. (Defs. Ex. D at 81, 106-07). Golubski was then directed to put a stop on the individual. She exited her vehicle and pursued D.Z. on foot. (Doc. 130, Ex. 1 at 10). Officer Golubski was unable to catch up with the cyclist, whom both sides concede was not aware that she was pursuing him. Buell, however, did not know at the time that D.Z. was not trying to evade Golubski. According to Buell, he saw Officer Golubski running back to her patrol car after she radioed that she was unable to catch the suspect.5 (Defs. Ex. B at 13).
5

Plaintiff vehemently disputes this claim, in part, because Buell states that he saw both Golubski and another officer running back to her car. (Pls. SOF at 20). Plaintiff 6

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Officer Buell then attempted to catch the suspect by turning down another street. He spotted Plaintiff riding his bicycle and turning into a driveway that Buell later learned was D.Z.s own residence. (Id. at 14-16). The home was between 0.4 and 0.5 miles from the victims home. Buell sent out a radio dispatch that the suspect was cutting through the yards. (Defs. Ex. E at 7:55). Buell stopped his vehicle and pursued D.Z. on foot up his driveway after Plaintiff got off his bike. A gate divided the driveway from the homes backyard. D.Z. allegedly placed his hands on it. Buell claims that this action led him to conclude that Plaintiff was attempting to flee. The officer ordered him to stop, D.Z. promptly complied, and Buell placed him in handcuffs. (Defs Ex. B at 17-18; Ex. C at 16-17). While these events were proceeding, a third description of the suspect was broadcast that was more specific than the earlier ones: black T-shirt, dark cargo shorts, no hat, skinny, tall probably six feet, high school age. (Defs. Ex. E at 8:00). Unlike the first two broadcasts, however, no officer responded to this police radio dispatch. Officer Buell took D.Z. to the front of the driveway and radioed for the burglary victim to be brought to the scene for a second show up. She arrived no more than ten minutes later and stated that D.Z. was not the intruder. Plaintiff was immediately released. B. Legal Standard 1. Summary Judgment

claims that Buell has lied under oath by creating a mystery officer in the second policeman to evade liability. No evidence supports this contention. Plaintiffs reliance on Exhibits 31 and 75 is unavailing. After carefully examining all of the evidence that Plaintiff cites, the Court finds that nothing disputes Buells claim to have seen Golubski herself running back to her car. The specific identity of the second officer is not material to the Fourth Amendment issues. 7

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Summary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Such a fact issue exists only where a rational trier of fact could find for the nonmoving party. Id. at 324. The evidence, together with all reasonable inferences that can be drawn from it, must be viewed in the light most favorable to the nonmoving party. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). The nonmoving party cannot overcome a summary judgment motion by relying on unsubstantiated facts or by resting on its pleadings. See Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007). Instead, the party that bears the burden of proof on an issue must demonstrate by means of admissible evidence that a genuine issue of material fact exists on a particular issue that requires a trial. Id. A court neither weighs conflicting evidence nor resolves factual disputes in deciding whether summary judgment is appropriate. Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996). 2. Qualified Immunity Qualified immunity protects public officials from liability for damages if their actions did not violate clearly established rights of which a reasonable person would have known. Catlin v. City of Wheaton, 574 F.3d 361, 365 (7th Cir. 2009) (citations omitted). The doctrine is designed to protect all but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341 (1986). Two questions are involved: (1) whether the facts, taken in the light most favorable to the plaintiff, show that the 8

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defendant violated a constitutional right; and (2) whether that constitutional right was clearly established at the time of the alleged violation. Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The plaintiff bears the burden of proof to show both elements of this test once a defendant raises immunity as an affirmative defense. Purvis v. Oest, 614 F.3d 713, 717 (7th Cir. 2010); Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995). The question of whether an official is immune from suit is separate from the merits of a plaintiffs underlying allegation. Fleming v. Livingston County, Ill., 674 F.3d 874, 879 (7th Cir. 2012); Hernandez v. Cook County Sheriffs Office, 634 F.3d 906, 912 n.8 (7th Cir. 2011) (A grant of qualified immunity is distinct from a victory on the merits, in that qualified immunity recognizes a right not to litigate.). In the context of a false arrest or false imprisonment allegation, this means that an officer is entitled to qualified immunity if arguable probable cause exists for detaining the plaintiff. That standard is met when a reasonable officer faced with the same facts and knowledge as the defendant could have reasonably believed that probable cause existed in light of well-established law. Fleming, 674 F.3d at 880 (internal quote and citation omitted). Thus, an officer is immune from suit if he reasonably, albeit mistakenly, believed that he had probable cause to arrest the plaintiff. See McComas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012); see also Wollin v. Gondert, 192 F.3d 616, 621 (7th Cir. 1999). C. Discussion 1. The Fourth Amendment Issues Defendant argues that he is entitled to qualified immunity concerning the Fourth Amendment claims stemming from the August 15, 2012 detention. Neither party disputes 9

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that Plaintiffs Fourth Amendment rights were well established at the time of the incident. The only question is whether Officer Buell violated those rights. Both parties divide that analysis into whether Buell had reasonable suspicion to stop Plaintiff, and the separate question of whether he had probable cause to arrest him (assuming that the initial stop evolved into a custodial arrest). The Court follows the parties preference in dividing the facts between the initial stop under Terry v. Ohio, 392 U.S. 1 (1968), and the handcuffing event that immediately followed. a. Reasonable Suspicion An officer can stop a suspect if he has a reasonable suspicion that criminal activity has occurred or is about to take place. United States v. Booker, 579 F.3d 835, 838 (7th Cir. 2009). This requires more than a hunch but less than probable cause and considerably less than preponderance of the evidence. Gentry v. Sevier, 597 F.3d 838, 845 (7th Cir. 2010). The standard is objective: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994). An officers subjective intent plays no role in this analysis. United States v. Barnett, 505 F.3d 637, 640 (7th Cir. 2007); United States v. Bullock, 632 F.3d 1004, 1012 (7th Cir. 2011). Buell argues that he had reasonable suspicion to stop Plaintiff because he sufficiently matched the first two descriptions that were broadcast on the dispatch radio. Plaintiff disputes that claim on grounds that are not always easily separated from one another. A central argument, however, is that a detailed description of the suspect was eventually broadcast to the searching officers that was incompatible with D.Z.s appearance. This description identified a medium complexion, black male, 17-18, 6'0 to 10

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6'2", 160-180 pds, juvenile, brown Tee shirt, dark tan cargo shorts, black hair, short hair up to , no facial hair, Brown eyes, thin with no body marks. (Pls. SOF at 7(c) & (d)). Plaintiff argues that no officer could have reasonably believed that D.Z. matched this description, which identified someone older, heavier, and taller than Plaintiff. Plaintiffs extensive reliance on this description is misplaced. Contrary to his assumption, the evidence plainly shows that it was never broadcast. The dispatch tape, for example, does not contain the identification in any of the radio flash reports sent out to Buell or any other officer. (Defs. Ex. E). The identification that Plaintiff relies on is found in the victims Police Incident Report that she gave several hours after D.Z. was detained and released. (Pls. Ex. 1). Plaintiff alleges that the report states that this detailed description was part of the earlier radio broadcasts. However, the report is silent on this issue. The only identifications that Buell clearly heard were the first two that were described above. Plaintiff claims that these earlier broadcasts were too vague for Buell to have had cause to detain him, or anyone else for that matter. D.Z. points out that the City of Evanston has a substantial African-American population. Citing the Ninth Circuits decision in Choi v. Gaston, 220 F.3d 1010 (9th Cir. 2000), Plaintiff argues that Buell could not detain anyone based on the descriptions he received because Evanston was buzzing with children who fit the initial description, including an array of children with different skin complexions that varied from light to medium to dark tones. The Court finds this reasoning unpersuasive. Choi does not address a situation in which the police detained a suspect based on an overly vague identification. The

description that was given to officers in that case identified a Vietnamese man by name 11

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(Phu Nguyen), age, weight, and height. The problem in Choi arose from the fact that the officers ignored this specific description to look in broad terms for an Oriental. They eventually detained a Korean man whose age and physical appearance varied significantly from the age, weight, height, and identity of the suspect who had been described to the officers. Given the relative specificity of the given description, the Ninth Circuit found that an inappropriate ethnic generalization was the only plausible explanation for the fact that a Korean in his thirties, short and slim, was confused with a Vietnamese teenager, who was taller and heavier. Choi, 220 F.3d at 1016. Those facts do not apply to this case. Plaintiff does not even argue that Buell drew improper generalizations from the description he received. Certainly, the evidence would not support such a claim. The initial broadcast alerted the Evanston police officers to a black male, probably in his teens, wearing a dark shirt, and khaki cargo shorts. That contains five specific identifiers race, gender, age, shirt color, and the type of pants. Plaintiff met all of these to some degree or other: he was African-American, male, in his teens, had a gray shirt, and was wearing cargo shorts. The more important question in this case is whether the description that Buell received was specific enough for him to have had reasonable suspicion to stop D.Z. Choi does not address the sufficiency of the

identification that was given to the arresting officers. Unfortunately, neither party in this case has fully addressed the adequacy of the identification or provided relevant case authorities from this circuit. Courts have reached varying conclusions about how specific a suspects description must be before an officer has reasonable suspicion to initiate a stop. At a minimum, a description must not be so general that it would allow officers to stop an overly broad category of persons. See Reid 12

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v. Georgia, 448 U.S. 438, 441 (1980); United States v. Hudson, 405 F.3d 425, 439 (6th Cir. 2005). This means that a description of race and gender alone will rarely provide reasonable suspicion justifying a police search and seizure. Brown v. City of Oneonta, N.Y., 221 F.3d 329, 334 (2d Cir. 2000). See also United States v. Brown, 448 F.3d 239, 247-48 (3d Cir. 2006) (finding the description of African-American males between 15 and 20 years of age, wearing dark, hooded sweatshirts and running south on 22nd Street, where one male was 5'8" and other was 6' to be too general); United States v. Jones, 619 F.2d 494, 497-98 (5th Cir. 1980) (rejecting the description of a black male, 5 feet 6 inches to 5 feet 9 inches tall and weighing between 150 and 180 pounds, with a medium afro hair style, who was wearing jeans and a long denim jacket); United States v. Moore, F. Supp.2d 2013 WL 5739006, at *3 (E.D. Wis. Oct. 22, 2013) (finding the description of a black male in dark clothing to be too vague). Based on these cases, the initial description that went out to the officers in this case raises some concerns. It was certainly less specific than those given in Jones and Brown. That said, it does contain a number of identifying features about the suspects age, weight, and clothing. Buell claims that these details were sufficient because the police are not required to have a minute description of a suspect before stopping him. Plaintiff is largely silent on that issue. The Court does not believe that the description was too broad for police officers to have stopped a suspect who matched all the criteria that the victim identified only minutes earlier. But even if it were, that does not necessarily mean, at least standing alone, that Buell did not have reasonable suspicion to stop D.Z. The question of whether reasonable suspicion exists goes beyond a suspects description to include the full range of 13

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circumstances that the officer faced. See United States v. Clarkson, 551 F.3d 1196, 1202 (10th Cir. 2009). The reasonableness of a stop must be seen in light of all the circumstances that an officer knew at the time. Bullock, 632 F.3d at 1012; see also United States v. Brown, 500 F.3d 48, 55 (1st Cir. 2007) (Although vague or ubiquitous descriptions may raise Fourth Amendment concerns . . . everything depends on context.). Even otherwise innocent behavior which Plaintiff was engaged in here can be considered in deciding if reasonable suspicion existed to stop a suspect. United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003). One starting point is United States v. Broomfield, 417 F.3d 654 (7th Cir. 2005). In that case, a suspect was described as a black man wearing dark clothing and brandishing a silver-colored pistol. Id. An officer stopped a black man, at night, in dark clothing, and less than one mile from the crime scene. The Seventh Circuit disagreed with the District Court that a seizure actually took place when the man was first stopped. In dicta, however, the Court found that, even if the Fourth Amendment had been implicated at that moment, the police would have had reasonable suspicion to stop the individual. The suspect was close in time and space to the crime scene; it was night; and few other people were out. See id. at 655 (It would be different had it been Lagos at high noon.). Importantly, one of the supporting factors was that the individual met the suspects description, even though the identification itself lacked specificity.6 Id. As Broomfield demonstrates, reasonable suspicion can exist even when the suspects description is not specific enough to support that finding on its own. In an

Bloomfield also involved an arrest issue that is not relevant here. 14

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unpublished opinion, the Seventh Circuit found that reasonable suspicion was present to stop a man who met the description of a large, not obese, black man wearing a white tshirt. United States v. Washington, 497 Fed.Appx. 647, 650 (7th Cir. 2012). That was less specific than the description in this case, though the supporting circumstances were stronger in Washington. Id. at 649-51. In United States v. Jackson, 160 Fed.Appx. 538 (7th Cir. 2005), the description of the suspects as three black men (one taller than the others), wearing dark clothing, and last seen walking together south on a specific street was found to be sufficiently specific to satisfy the Fourth Amendment. Id. at 540. See also United States v. Barnett, 332 Fed.Appx. 324 (7th Cir. 2009) (finding that a description of two black males, where one had on a blue shirt, black jeans check that black jeans, blue shirt was sufficient when combined with other factors); United States v. Harris, 182 Fed.Appx. 528 (7th Cir. 2006) (finding reasonable suspicion, in part, based on a match to a description of a black man wearing blue jeans and red T-shirt); United States v. Davis, 235 F.3d 584, 588 (D.C. Cir. 2000) (finding reasonable suspicion where suspect matched the sex, race, clothing, and location of a suspected shooter). The Court concludes that the circumstances surrounding D.Z.s initial detention support a finding that Buell had reasonable suspicion to stop him. Plaintiff met the general features of the suspects description, even if it was overly broad. Buell also knew that Officer Golubski had been pursuing Plaintiff, and he saw her running back to her patrol car. Buell testified during an internal police investigation of the incident that he believed that Plaintiff was being evasive based on what took place between Plaintiff and Golubski, as well as Golubskis radio statements that Buell heard. (Pls. Ex. 31 at EV 294). It is now clear that D.Z. was not trying to escape Golubski, but Buell did not know that at the time. 15

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The Court concludes that a reasonable officer could have believed at the time of the incident that Plaintiff was being evasive. See Wheeler, 539 F.3d at 639 (noting that qualified immunity provides ample room for mistaken judgments). Defendant was also mistaken that Plaintiff was being evasive when he turned into his own driveway. However, Buell clearly believed at the time that D.Z. was acting suspiciously because the officer sent out a broadcast that Plaintiff was cutting through the yards. (Defs. Ex. E at 7:50). Given that Buell did not know that D.Z. lived at the location, that was a reasonable conclusion under the circumstances. The stop also took place only 0.4 to 0.5 miles from the victims home, and approximately seven minutes after the first description was broadcast. (Pls. Ex. 10 at EV 310, 316). See Lenoir, 318 F.3d at 729; United States v. Goodrich, 450 F.3d 552, 563 (3d Cir. 2006) (both explaining that a suspects temporal and geographic proximity to a crime scene can support the reasonableness of an officers suspicion). Indeed, the first

description went out to officers while the victim was still on the phone with the police dispatcher; the second description was heard by Buell as the search was underway. This is not a case, therefore, where time meaningfully separates the description and the detention. Buell was required to act almost simultaneously with the flash reports. And despite Plaintiffs claim that the area was buzzing with young people, he has not cited any evidence to show that Buell saw other children of any race during the short period of time that elapsed in this case. See Goodrich, 450 F.3d at 563 (stating that the number of persons in the area of the stop is relevant). Indeed, D.Z. does not claim differently in his own declaration. (Pls. Ex. 25). Plaintiff has claimed throughout this case that Buell could not have had reasonable 16

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suspicion to stop him because he was motivated by racial animus. That was also a central argument of Plaintiffs earlier summary judgment motion. His response to Defendants motion claims that Buell was required to construe the suspects description in a racially neutral manner and that he engaged in racial profiling. (Resp. at 6, 8). Plaintiff

emphasized the issue at the hearing by arguing that racial profiling is at the center of this case. These claims are misplaced because Buells subjective intent is not decisive for the Fourth Amendment issues in this case. Fourth Amendment seizure claims are governed by an objective standard, not by an officers private motivations. [T]he question is whether the officers actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 397 (1989) (emphasis added). A court always considers an officers subjective reasons for deciding if probable cause or reasonable suspicion exists. See Ochana v. Flores, 199 F. Supp.2d 817, 825 (N.D. Ill. 2002) (citing cases). But that involves what an officer knows and sees, and the reasonableness of what he concludes from it before detaining a suspect. That is distinct from the question of whether Buell stopped D.Z. because of a subjective racial animus. Such a consideration is not part of the analysis of Plaintiffs claims. See Whren v. United States, 517 U.S. 806, 813 (1996) (Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.); Atwater v. City of Lago Vista, 532 U.S. 318, 372 (2001); Barnett, 505 F.3d at 640; Bullock, 632 F.3d at 1012; Bloom v. Palos Heights Police Dept., 840 F. Supp.2d 1059, 1069-70 (N.D. Ill. 2012). Plaintiffs allegations of racial profiling are equally out of place in this context. 17

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Racial profiling is generally understood to mean the improper use of race as a basis for taking law enforcement action. Chavez v. Ill. State Police, 251 F.3d 612, 620 (7th Cir. 2001). Such claims are ordinarily brought under the Fourteenth Amendments Equal Protection Clause. See id.; Maryland State Conference of NAACP Branches v. Maryland State Police, 454 F. Supp.2d 339, 347 (D. Md. 2006) (Stops and searches based on such considerations as race . . . are precluded by the Equal Protection Clause of the 14th Amendment.); Chriswell v. Village of Oak Lawn, 2013 WL 5903417, at *11 (N.D. Ill. Nov. 4, 2013). Plaintiff has not invoked the Equal Protection Clause. He cannot now urge the Court to find that Buell engaged in prohibited racial profiling, especially as his Complaint does not make that allegation in Count I. Plaintiffs race claims appear to allege that (1) the description that Buell received was so general that he could have detained any African-American youth he saw that day, or (2) Buell was not permitted to take race into account when searching for the suspect. The Court rejects the first of these claims for the reasons discussed above. As for the second, an officer is never permitted to stop a suspect based solely on his race. That would be tantamount to racial profiling. But an officer is not prohibited from considering race in all circumstances. Many courts have found that race can be a legitimate factor when there are other individualized reasons for stopping a suspect. See United States v. Montero-Camargo, 208 F.3d 1122, 1134 n.22 (9th Cir. 2000) (en banc) (Hispanic appearance, or any other racial or ethnic appearance, including Caucasian, may be considered when the suspected perpetrator of a specific offense has been identified as having such an appearance.); Floyd v. City of New York, F. Supp.2d , 2013 WL 4046209, at *6 (S.D.N.Y. Aug. 12, 2013) ([A] persons race may be important if it fits the 18

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description of a particular crime suspect.); Cherry v. Washington County Sheriffs Dept., 2012 WL 2525637, at *5 (E.D. Wis. June 29, 2012) ([T]here is nothing wrong with using a suspects race as a factor in describing him to the police, or in police relying on the persons race in determining whether he fits the description of the suspect.). Plaintiff links his race-based claims to a variety of pre-seizure events that take up most of his brief. It is not clear if Plaintiff is arguing that the totality of the circumstances deprived Buell of reasonable suspicion, that the pre-seizure events were themselves violations of the Fourth Amendment, or both. The Court notes, however, that D.Z. describes the pursuit that Buell set into motion as an unconstitutional racial profiling jaunt [ ]. (Resp. at 8). This suggests that Plaintiff is making a constitutional attack on the events themselves that led up to his detention. Such an attack is not well founded. Pre-seizure events are important to deciding if reasonable suspicion exists to stop a suspect. However, such events are not themselves subject to a Fourth Amendment analysis. Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992); see also Jackson, 160 Fed.Appx. at 541 (The Fourth Amendment is not implicated until a person is actually stopped by police.) (citing Terry, 392 U.S. at 16-17). Courts have been very clear that the Fourth Amendment does not ordinarily apply to the search that leads up to a seizure. See County of Sacramento v. Lewis, 523 U.S. 833, 842-43 (1998); Brower v. County of Inyo, 489 U.S. 593, 595-96 (1989); Steen v. Myers, 486 F.3d 1017, 1021 (7th Cir. 2007). [A] person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguard. United States v. Mendenhall, 446 U.S. 544, 552-53 (1980). That means that the Fourth 19

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Amendment was first implicated in this case when Plaintiff was actually stopped by Buell in his driveway, not when Officer Brown (or even Buell, as D.Z. claims) issued a flash report that someone on a bike could be a suspect. If Plaintiff is arguing that Buells pre-seizure behavior created the very circumstances that support reasonable suspicion, Plaintiff has failed to draw a link from the evidence to his conclusion. Plaintiff claims that the police fatally misdirected the officers search for a suspect when Officer Brown first radioed in that he may have spotted a suspect on a bicycle. According to D.Z., Buell and the officers were strictly limited to looking for someone who was traveling on foot. Plaintiff has not cited any evidence to support that allegation. The victim initially told the emergency dispatcher that she had seen the suspect running away from her house down an alley. But the record does not indicate that the dispatcher communicated that fact to the officers. The dispatch tape shows that the dispatcher took the callers description, and then initiated a separate flash outlook to officers that did not describe in any way how the suspect was traveling. Plaintiff has also argued at length that it is crucial to distinguish who (and he claims it was Buell) told Officer Golubski to put a stop on D.Z. when she stated on the radio that she had spotted someone on a bike who matched the suspects description. He now claims that this fact is so important that the existence of qualified immunity rests on this and the bike issue. (Resp. at 4). Plaintiff also argues that it is important to distinguish between whether the unknown officer commanded Golubski to act or merely requested her to do so. Buell has testified under oath that the voice on the dispatch tape was someone other than himself. (Defs. Ex. B at 9). Golubski herself does not state that it was Buell. (Doc. 130, Ex. 1 at 9). 20

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Several problems arise from Plaintiffs reasoning on this issue. He claims that the Court must assume that the voice was Buells because the Court is obligated to construe all facts in D.Z.s favor. But Plaintiff has not presented any relevant facts for the Court to construe. In his response, Plaintiff engages in a discussion about an officer known as Detective Bush. Although D.Z. explains little about who this is, he claims that Buell stated at some point in this case that the voice on the radio really belonged to Bush. Plaintiff does not cite the record to support that allegation and, equally important, he does not explain why it is even relevant. (Resp. at 13). D.Z. only argues at some length that the voice could not have been Detective Bushs a claim that seems to be suggesting once more that Buell has somehow lied throughout this case. The Court earlier rejected Plaintiffs motion to strike Buells declaration on that ground, and it will not revisit the issue here. Even if it was Buell who made the radio comment, Plaintiffs brief does not explain why that fact is relevant to Buells claim of qualified immunity. Plaintiffs Rule 56.1 submission is also unhelpful. It claims that, at the time of the radio message to Golubski, Detective Bush was with the victim and knew that the real suspect was a black male, medium complexion, 17 to 18 years-old, 6'1 to 6'1, 160 to 180 pounds, thin, no facial hair, who fled on foot. (Pls. SOF at 17). That could only be relevant if Buell had received this updated description. As he did not, the question of what the victim may have told Detective Bush is immaterial to deciding whether Buell had reasonable suspicion to stop D.Z. For these reasons, the Court finds that Buell had reasonable suspicion to initiate the Terry stop of D.Z. Even if he did not, however, the circumstances present in this case still entitle Buell to qualified immunity on the issue. An officer can act reasonably for qualified immunity purposes even if reasonable suspicion did not exist to make a Terry stop. See 21

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id.; Snider v. Pekny, 899 F. Supp.2d 798, 811-12 (N.D. Ind. 2012). A defendant is not always required to act in an ideal or exemplary manner to be immune from suit. A court only asks if the officer acted reasonably under the circumstances he faced, not whether another reasonable, or more reasonable, interpretation of the events can be constructed several years after the fact. Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998). Buell was not required to have behaved perfectly on the facts as perceived by an omniscient observer, but on the facts as they appeared to a reasonable person in [his] position, even if that reasonable belief turned out to be incorrect. Stokes v. Bd. of Educ. of the City of Chicago, 599 F.3d 617, 622 (7th Cir. 2010). The Court finds that Buell meets this standard, which Plaintiff does not address at all. Plaintiff bears the burden of defeating Buells immunity claim. Jewett v. Anders, 521 F.3d 818, 823 (7th Cir. 2008). Plaintiffs arguments rely primarily on pre-stop actions such as Officer Browns initial broadcast of an allegedly suspicious person an a bicycle, and the request (by someone) that Golubski stop the later suspect who turned out to be Plaintiff. But Buell stopped Plaintiff based on his independent observation of D.Z. (Defs. Ex. B at 15-17). The stop took place at the end of brief pursuit of a suspect whom Buell had reason to believe was fleeing Officer Golubski.7 Based on the totality of the events that Buell saw, and the communications he heard on the dispatch radio, the Court concludes
7

Plaintiff claims that no pursuit took place in this case. (Resp. at 10). He also states that Buell engaged in a fast moving[,] aggressive, boots-to-the ground inquisition of sort[s]. (Id. at 9). That sounds an awful lot like a pursuit. The term that is used is not as important as the fact that Buell ran after Plaintiff as soon as he saw Plaintiff cutting through the yards. (Defs. Ex. B at 16-18).

22

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that an officer in Buells position could have reasonably, although mistakenly, concluded that reasonable suspicion existed. Defendants motion is granted on this issue. b. Probable Cause A police officer has probable cause to arrest a suspect if, at the time of the arrest, the facts and circumstances within the officers knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. Wagner v. Wash. County, 493 F.3d 833, 836 (7th Cir. 2007) (per curiam) (internal quote and citation omitted). A Fourth Amendment violation does not exist if an officer has probable cause to arrest a suspect. See Driebel v. City of Milwaukee, 298 F.3d 622, 644 (7th Cir. 2002). An allegation of false imprisonment or false arrest is shorthand for an unreasonable seizure prohibited by the Fourth Amendment. Gonzalez v. Village of West Milwaukee, 671 F.3d 649, 655 (7th Cir. 2012). Defendant denies that he arrested Plaintiff. D.Z. claims that he did, but Plaintiff fails to explain how the initial stop evolved into an arrest. The transition from a Terry stop to a custodial arrest involves a flexible and highly fact-intensive inquiry. Jewett, 521 F.3d at 823. See also United States v. Stewart, 388 F.3d 1079, 1084 (7th Cir. 2004). The Court presumes that Plaintiff is relying on the fact that Buell handcuffed him, though D.Z. never addresses it directly. Being handcuffed may, or may not, turn a Terry stop into a full custodial arrest, depending on the circumstances involved. See, e.g., Bullock, 632 F.3d at 1016; Rebolar ex rel. Rebolar v. City of Chicago, Ill., 897 F. Supp.2d 723, 732 (N.D. Ill. 2012) (doubting that being handcuffed for ten minutes necessarily constitutes an arrest). But see United States v. Howard, 729 F.3d 655, 661 (7th Cir. 2013) (Handcuffs in a Terry 23

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stop and frisk are not and should not be the norm.). The Court does not address whether Plaintiff was actually arrested or not. Defendants argument is that, even if an arrest took place, he is still entitled to qualified immunity because he had arguable probable cause to act as he did. His argument is twofold: (1) Buell claims that Plaintiff sufficiently resembled the suspects description, and (2) Buell had reason to believe that Plaintiff was attempting to flee. The first of these issues was addressed earlier. The Court now turns to the reasonableness of the second issue. Buell stated during the internal police review that Officer Golubskis radio reports concerning Plaintiff led him to believe that Plaintiff was trying to run away from Golubski. (Pls. Ex. 25 at EV 294). He also thought that D.Z. was being evasive when he turned into the driveway. (Id.). It was at that point that Buell radioed that Plaintiff was cutting through the yards. When he saw D.Z. place his hands on the fence gate that divided the end of the driveway and the back yard, Buell handcuffed him because the officer believed that Plaintiff was trying to flee. (Id. at 298). D.Z. was released within ten minutes, when the victim arrived and stated that he was not the intruder. Liberally construed, D.Z. challenges this claim on five grounds: (1) Buells deposition testimony, (2) D.Z.s subjective intent, (3) the final flash report, (3) his bicycle, and (4) the location of a latch on the gate. The Court addresses each of these in turn. Plaintiffs citation of Buells deposition testimony is unavailing. Buell stated that he handcuffed D.Z. because: (1) he thought that Plaintiff was trying to flee, (2) D.Z. was in better shape than Buell himself, and (3) Buell was concerned that not doing so might lead D.Z. to injure himself, Buell, or another officer. (Pls. Ex. 76 at 76-77). Buell does not rely on the second and third of these comments to support his motion. His only claim is that he 24

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thought that D.Z. was trying to run away. Plaintiff does not argue that this conclusion is unreasonable. His only statement on the issue in his response brief is that Buell

handcuffed [D.Z.] because he claims that D.Z. was about to flee. (Resp. at 15). That merely restates Buells own allegation. It does not present an argument for finding that the allegation is not reasonable under the circumstances. Plaintiffs reliance on his private intent also fails to address Buells argument. D.Z. alleges in his statement of facts that Buell could not have believed that he was trying to flee because he was not, in fact, attempting to do so. In support, D.Z. cites his own declaration and various statements from his mother and other persons, including his expert witness.8 (Pls. SOF at 29). These citations are not relevant because D.Z.s subjective intent is not
8

Plaintiff cites his expert witness for a variety of claims in his response. Courts have wide discretion in deciding whether to admit expert testimony as part of summary judgment. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704-05 (7th Cir. 2009). The Court declines to consider the experts statements for several reasons. Plaintiff cites the experts report and deposition, but he does not discuss the experts testimony in his brief. This leaves the Court to fend for itself in the face of 318 pages of expert documents. For the most part, Plaintiff merely cites to these multiple exhibits without any specificity or discussion. Courts are not required to scour the record looking for factual disputes . . . [or] to piece together appropriate arguments. Little v. Coxs Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995). This applies to deposition transcripts. Hanno v. Sheahan, 2004 WL 419899, at *1 (N.D. Ill. March 1, 2004). Defendant opposes the admission of the experts statements under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 579 (1993). The Court declines to undertake a Daubert analysis at this point, as Plaintiffs brief does not include a narrative discussion of any of the experts statements. The Courts own review of the experts report, declaration, and deposition transcript suggests that many of his statements are ordinary fact and opinion testimony. Moreover, the expert also makes a number of legal conclusions that, if accepted, could affect the cases outcome. For example, Plaintiff cites the expert to show that Buell did not act reasonably. (Resp. at 8). Like most Fourth Amendment issues, however, that presents a mixed question of law and fact. Ornelas v. United States, 517 U.S. 690, 696 (1996). Expert conclusions on outcome-determinative legal issues are inadmissible. Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (citation omitted). 25

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at issue. Indeed, all parties agree that D.Z. was not trying to run away. The salient question is whether Officer Buell had reason to think that he was. Buell could only base his conclusion on what he saw and heard at the time, not on what D.Z. was subjectively thinking. Plaintiffs third ground is more problematic. Plaintiff argues that Buell should have released him as soon as the officer heard the more detailed flash report that was radioed while D.Z. was already detained. (Resp. at 2; Pls. Add. SOF at 5). Plaintiff bases this claim on the assumption that the third description was the one that he has relied on throughout this case: a black male, 17 to 18 years-old, 6'1 to 6'2, 160 to 180 pounds, black, medium complexion, thin, no facial hair, etc. (Id.). As discussed earlier, that was never sent out to the officers. Buell denied in his deposition testimony that he ever heard it. (Pls. Ex. 15 at 39). The actual flash report described the suspect as wearing a black T-shirt, dark cargo shorts, no hat, skinny, tall probably six feet, high school age. (Defs. Ex. E at 8:00). Plaintiff does not mention this description in his brief and does not claim that Buell ever heard it. The dispatch tape clearly shows that no police unit responded to the flash report, though the first two reports elicited responses. Moreover, Plaintiff did not ask Buell at his deposition if he heard the third description. In the absence of any evidence that Buell heard the report, and with no argument from Plaintiff on the matter at all, D.Z. has not shown that Buell should have released him based on the third identification. Next, Plaintiff contests Buells claim that he saw Plaintiff jump off his bike when he entered the driveway. (Defs. SOF at 36). Buell stated in his interview with the internal investigator that he saw the bike laying on the ground not even with the kickstand, just 26

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like it was thrown on the ground. (Pls. Ex. 31 at 635). Plaintiff claims that this undercuts Buells reliance on the bike issue as a ground for thinking that D.Z. was fleeing. The Court agrees that an issue of fact exists on whether Buell saw Plaintiff jump off of his bike. That is not the same, however, as constituting a genuine issue of material fact that defeats Buells motion. A fact is material when the factual dispute in question is

outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d 1286, 1291 (7th Cir. 1997). [F]acts not outcome-determinative under the applicable law, though in dispute, may still permit the entry of summary judgment. Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Assn of Indianapolis, 806 F.2d 146, 149 (7th Cir. 1986). Buells declaration states that he relied on two factors in concluding that Plaintiff was fleeing: (1) he matched the suspects description, and (2) the fence issue discussed below. (Defs. Ex. B at 18). The bike is not part of this. Thus, whether Plaintiff jumped off his bike or not is not outcome-determinative. Finally, and most importantly, Plaintiff claims that Buell could not have believed that D.Z. was trying to flee because the latch to the fence gate was on the driveway side where D.Z. was standing. Plaintiff does not explain why that fact is relevant to whether Buell had reason to believe that D.Z. was fleeing. Liberally construed, Plaintiff appears to be claiming that he would not have placed his hands on the fence to escape, as Buell claims, because the latchs placement would have allowed him to open the gate without touching the fence. Plaintiffs brief does not make that argument directly. But the Court cannot discern any other reasonable basis for the emphasis that D.Z. has placed on the issue, including expert witness testimony. The Court finds this position to be unpersuasive. Plaintiff claims that Buells flight 27

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theory began with the false allegation that the latch was actually on the opposite side of the gate where D.Z. was standing. (Resp. at 15). But Plaintiff has not cited any evidence that links the latchs location with the origin of Buells thoughts concerning flight. Buell never claimed that the latch was not on the driveway side. His declaration does not mention the latch at all. Plaintiff points to statements on the issue that Officer Hearts-Glass made to the City of Evanstons Human Services Committee. However, these comments have no direct relevance to the issue. The important inquiry is the reasonableness of Buells claims on the issue, not what Ms. Hearts-Glass later stated in her out-of-court commentary. In reality, Buell described at the internal investigation that he saw the following: I saw him with his hands on top of the fence, and I believe that I put out over the air that he was possibly going through the yards or something like that. And he had his hands on top of the fence, and it appeared to me like he was trying to climb over the fence or jump over the fence. (Pls. Ex. 31 at EV 278). Plaintiff appears to take exception to this claim in his Rule 56.1 submission by citing Buells behavior at his deposition. Plaintiff points out that Buell physically re-enacted events at the deposition by raising his hands to show what he saw Plaintiff doing. Plaintiffs counsel stated on the record at the time that Buell was holding up his hands as if reaching for the top of a fence. (Pls. Ex. 15 at 53). Plaintiff claims that this demonstrates the gross shortcomings of Buells claim that he saw D.Z. put his hands on the fence. (Pls. SOF at 27). The Court is unable to follow what Plaintiff is trying to argue on this point. It may involve a distinction between claiming that D.Z. put his hands on the fence (as paragraph 37 of Buells Rule 56.1 submission states) and putting his hands on top of the fence. The 28

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problem with this possibility is that, although it is a straightforward claim to make, Plaintiffs response does not mention it at all. This fails to respond to Buells argument and constitutes a waiver of the issue. See Delapaz v. Richardson, 634 F.3d 895, 900 (7th Cir. 2011) (noting that arguments not addressed in a response brief are waived). Moreover, Buells position throughout this case has been that D.Z. placed his hands on the top of the fence. The Court does not believe that the use of the preposition on, as opposed to on top of, in Buells declaration is sufficient to defeat his motion. Plaintiff may also be trying to claim that, in light of the latchs placement, he did not need to put his hands on or on top of the fence to open the gate. This could pose a genuine issue of material fact if Plaintiff proffered evidence showing that he did not act in the way that Buell alleges. Again, however, his response is silent on the issue. Plaintiff cites parts of his deposition transcript, but they only describe immaterial background facts. (Defs. Ex. D at 14-21; Resp. at 15). His Rule 56.1 submission references pictures of the gate. (Pls. SOF at 27). That is unavailing because the latchs location does not establish anything about what Buell claims he saw. Plaintiff must allege that he in fact put his hands on the latch instead of raising them as Buell states. The Courts independent review of Plaintiffs deposition shows that his counsel asked him at one point if one would need to reach over the fence to open the gate. Plaintiff stated that the latch on the outside of the gate would open it. D.Z. does not rely on this testimony in his response. Thus, the deposition statements only address the issue in the hypothetical. Plaintiff was never asked what he actually did on August 30,

29

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2012.9 (Defs. Ex. D at 55). Even if Plaintiff had cited this evidence, which he has not, it would be insufficient to dispute Buells claim. The fact that D.Z. did not need to put his hands on the top of the gate to open it does not mean that he did not do so as Buell ran up to him on the driveway. Under these facts, the only way to set aside Buells alleged reasons for thinking that Plaintiff was trying to flee is to find that he is not credible. Plaintiff tried to do that earlier by attacking his declaration under the sham affidavit rule. The Court has already rejected that claim. Courts are strictly forbidden at the summary judgment stage from making credibility decisions, weighing the evidence, or deciding what inferences should be drawn from the facts. Paz v. Wauconda Healthcare and Rehab. Centre, LLC, 464 F.3d 659, 664 (7th Cir. 2006). It was Plaintiffs responsibility to cite evidence that controverted Buells claim. Since he has not done so, Defendants Statement of Fact No. 37 is undisputed. See N.D. Ill. R. 56.1(b)(3)(B) (All materials facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.). Under these facts, the Court concludes that Officer Buell had arguable probable cause to effect an arrest, even assuming that the Terry stop in this case became a custodial arrest. Buell was mistaken about Plaintiff. However, that does not preclude him from having arguable probable cause to act as he did. The Court stresses that Plaintiff has the burden of showing that Buell is not entitled to qualified immunity. Yet his brief does not mention arguable probable cause. Since arguable probable cause exists, Buell is immune
9

Plaintiff states in his declaration that he did not try to climb the fence. (Pls. Ex. 25 at 13). Plaintiff does not appear to believe this is relevant, as he has not cited the statement in his response. Even if he did, however, the declaration fails to address Buells basic allegation that he saw D.Z. put his hands on the fence. 30

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from Plaintiffs Fourth Amendment seizure claim. Williams v. Jaglowski, 269 F.3d 778, 781 (7th Cir. 2001). Immunity on the seizure claim also makes Buell immune from the false imprisonment allegation. See Fleming, 674 F.3d at 880 (discussing the issue in relation to false arrest claims). Defendants Motion for Summary Judgment is granted on the Fourth Amendment issues. 2. The State Law Claims The Illinois Tort Immunity Act provides immunity to local government employees from tort claims that arise in the scope of enforcing laws, as long as the employees conduct is not willful or wanton. See Carter v. Chicago Police Officers, 165 F.3d 1071, 1080 (7th Cir. 1998). An act is willful if it is committed with actual or deliberate intention to harm or with an utter indifference to or conscious disregard for the safety of others. Hart v. Jage, 1999 WL 51792, at *6 (N.D. Ill. Jan. 29, 1999) (internal quote and citation omitted). Buell asks the Court to find that he is immune from Plaintiffs state-law claims under this provision, as well as under Illinois common law. In the alternative, he argues that the Court should decline to exercise supplemental jurisdiction over these claims. Plaintiff has not responded to either of these requests. The Court does not reach the immunity issue under these facts. Buell cites a series of cases for general principles, but he does not address the specific claims that Plaintiff has brought. The Court will not do so on its own, in part, because Plaintiff alleges more than state-law tort claims. Count II alleges assault (though Paragraph 1 of the Complaint calls its battery), and Count II complains of false imprisonment. Both of these allegations involve common law tort claims that are potentially subject to the Illinois Tort Immunity Act. However, Count IV of the Complaint alleges a due process violation under the Illinois state 31

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constitution. This involves the alleged infringement of a constitutional right, not a tort action. [T]he Tort Immunity Act applies only to tort actions and does not bar actions for constitutional violations. People ex rel. Birkett v. City of Chicago, 325 Ill.App.3d 196, 202, 758 N.E.2d 25 (Ill.App. Ct. 2001). Thus, even if the Court found that Buell is immune from Plaintiffs tort claims, the state constitutional allegation would still remain in the case. Under these facts, the Court will not exercise its supplemental jurisdiction over any of Plaintiffs state-law claims. A court may decline to exercise its supplemental jurisdiction over claims like those at issue here once the court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. 1367(c)(3). A court does not lose subject matter jurisdiction; rather, it has the discretion to decide whether to exercise its additional jurisdiction over the state-law claims. See City of Chicago v. Intl College of Surgeons, 522 U.S. 156, 172 (1997). Courts have broad power to decide the issue. See Contreras v. Suncast Corp., 237, F.3d 756, 766 (7th Cir. 2001); Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 727-28 (7th Cir. 1998). [I]t is the well-established law of this circuit that the usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial. Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999). The only claims in this case over which the Court had original jurisdiction were those brought pursuant to the Fourth Amendment. Those claims have been dismissed, and the Court will not exercise its supplemental jurisdiction over the remaining state-law allegations. Counts II, III, and IV of the Complaint are dismissed without prejudice. Plaintiff remains free to re-file them in state court.

32

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D. Conclusion For all these reasons, Defendants Motion for Summary Judgment [76] is granted. Plaintiffs Fourth Amendment claims in Count I are dismissed with prejudice. His state-law claims in Counts II, II, and IV are dismissed without prejudice.

Date: February 26, 2014

_________________________ United States Magistrate Judge

33