IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JONATHAN SILVA, )

)

Plaintiff, ) 12 C 3822 

)

vs. ) Judge Dow

)

CITY OF CHICAGO, )

Chicago Police Officers ) Magistrate Judge Kim

KYLE GAFNEY, Star 6245, and )

DAVID BARNES, Star 5631, ) Jury Demand

)

Defendants. )

DEFENDANTS’ JOINT ANSWER TO 

PLAINTIFF’S COMPLAINT, DEFENSES AND JURY DEMAND

Defendants, the City of Chicago (“City”), and Chicago Police Officers Kyle Gafney and

David Barnes (“Defendant Officers”), by one of their attorneys, Kathryn M. Doi, Assistant

Corporation Counsel, for their answer to Plaintiff’s Complaint, defenses and jury demand, state

as follows:

1. This is an action for money damages brought pursuant to 42 U.S.C. § 1983, and 

statutes of the State of Illinois.

ANSWER: Defendants admit the allegations contained in this paragraph.

2. Jurisdiction for Plaintiff’s federal claims is based on 28 U.S.C. §§ 1331 and

1343(a). Jurisdiction for Plaintiff’s state claims is based on supplemental jurisdiction pursuant to

28 U.S.C. § 1367(a).

ANSWER: Defendants admit that jurisdiction is proper.

3. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), in that the claims

arose in this district as alleged below.

ANSWER: Defendants admit that venue is proper, but deny the remaining allegations

contained in this paragraph and deny any illegal or wrongful conduct..

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Parties

4. Plaintiff is a resident of Chicago, Illinois.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations contained in this paragraph. 

5. Defendant-Officers GAFNEY and BARNES are duly appointed and sworn

Chicago police officers. At all times relevant to this Complaint, the Defendant-Officers were

acting in the course and scope of their employment, and under color of state law, ordinance

and/or regulation.

ANSWER: Defendants admit the allegations contained in this paragraph. 

6. The Defendant-Officers are sued in their individual capacities.

ANSWER: Defendants admit the allegations contained in this paragraph. 

7. Defendant CITY OF CHICAGO is a municipal corporation, duly incorporated

under the laws of the State of Illinois, and is the employer and principal of the DefendantOfficers.

ANSWER: Defendants admit the allegations contained in this paragraph. 

Facts

8. On or about June 26, 2010, Plaintiff was a passenger in a car driven by his friend

Andrew.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations contained in this paragraph. 

9. While Andrew was driving northbound on Ashland, another vehicle pulled up

beside his car.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations contained in this paragraph. 

10. The occupants of the second car flashed gang hand signs at Plaintiff and Andrew.

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ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations contained in this paragraph. 

11. Andrew ignored the other car and continued driving north.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations contained in this paragraph. 

12. The second vehicle began following closely behind Andrew's car and bumped

Andrew's car.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations contained in this paragraph. 

13. Near Ashland and 50th, the second car bumped Andrew's car again, causing him

to hit a parked car.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations contained in this paragraph. 

14. Plaintiff got out of the car to run away from the people who were chasing them.

ANSWER: Defendants admit that Plaintiff got out of the car and ran away from

Defendant Officers. Defendants deny the remaining allegations contained in this paragraph.

15. When Plaintiff got out of the car, he saw police lights.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations contained in this paragraph. 

16. Plaintiff went towards the police asking for help.

ANSWER: Defendants deny the allegations contained in this paragraph. 

17. One of the Defendant-Officers pointed his gun at Plaintiff and told Plaintiff to

"shut the fuck up."

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ANSWER: Defendants deny the allegations contained in this paragraph. 

18. The officer hit Plaintiff in the face.

ANSWER: Defendants deny the allegations contained in this paragraph. 

19. The Defendant-Officers tackled Plaintiff to the pavement and beat him.

ANSWER: Defendants admit that Officer Gaffney took Plaintiff down to the ground. 

Defendants deny the remaining allegations contained in this paragraph.

20. The Defendant-Officers put handcuffs on Plaintiff.

ANSWER: Defendants admit the allegations contained in this paragraph. 

21. Plaintiff was searched. No contraband or evidence of criminal activity was found.

ANSWER: Defendants admit that Plaintiff was searched and no contraband was found

on his person. Defendants deny the remaining allegations contained in this paragraph.

22. Plaintiff was transported to Mercy Hospital where he received treatment for a

broken nose and lacerations on his face which required twelve stitches.

ANSWER: Defendants admit that Plaintiff was transported to Mercy Hospital. 

Defendants lack knowledge or information sufficient to form a belief as to the truth of the

remaining allegations contained in this paragraph.

23. After Plaintiff was released from police custody, he suffered from an acute

nosebleed for which he was hospitalized and received a blood transfusion.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations contained in this paragraph.

24. Defendant-Officers charged Plaintiff with two counts of resisting arrest. The case

was docketed in the Cook County Circuit Court as: People v. Jonathan Silva, 10 CR 233992.

ANSWER: Defendants admit the allegations contained in this paragraph. 

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25. There was not probable cause for these charges.

ANSWER: Defendants deny the allegations contained in this paragraph. 

26. The Defendant-Officers brought these false charges to justify and cover up their

use of excessive force.

ANSWER: Defendants deny the allegations contained in this paragraph and deny any

illegal or wrongful conduct. 

27. On May 6, 2011, the charges were stricken.

ANSWER: Defendants admit the allegations contained in this paragraph. 

28. Each individual Defendant-Officer acted willfully and wantonly, maliciously, and

with a conscious disregard and deliberate indifference to Plaintiff s rights.

ANSWER: Defendants deny the allegations contained in this paragraph and deny any

illegal or wrongful conduct. 

29. As a direct and proximate result of the acts of the Defendants described above,

Plaintiff suffered damages including loss of physical liberty, loss of time, loss of normal life,

physical pain and suffering, disfigurement, and emotional and pecuniary damages including

medical expenses, attorneys' fees, and monies posted for bond.

ANSWER: Defendants deny the allegations contained in this paragraph and deny any

illegal or wrongful conduct. 

COUNT I

(42 U.S.C. § 1983 – False Arrest)

30. Plaintiff realleges paragraphs 1 through 29 as if fully set forth herein.

ANSWER: Defendants’ answers to the foregoing paragraphs 1 through 29 are

incorporated by reference as though fully set forth herein. 

31. Defendant-Officers arrested Plaintiff.

ANSWER: Defendants admit the allegations contained in this paragraph. 

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32. Defendant-Officers did not have an arrest warrant, probable cause, or any other

legal justification to arrest Plaintiff.

ANSWER: Defendants deny the allegations contained in this paragraph and deny any

illegal or wrongful conduct. 

33. The arrest of Plaintiff without any legal justification or probable cause violated his

Fourth Amendment right, as guaranteed by the Fourteenth Amendment, to be free from

unreasonable seizures.

ANSWER: Defendants deny the allegations contained in this paragraph and deny any

illegal or wrongful conduct. 

WHEREFORE, Defendants request that judgment be entered in their favor and against

Plaintiff, for costs of defending this suit and any other relief this Honorable Court deems

necessary and proper.

COUNT I

(42 U.S.C. § 1983 – Excessive Force)

34. Plaintiff realleges paragraphs 1 through 29 as if fully set forth herein.

ANSWER: Defendants’ answers to the foregoing paragraphs 1 through 29 are

incorporated by reference as though fully set forth herein. 

35. Defendant-Officers violated Plaintiffs Fourth Amendment right, as guaranteed by

the Fourteenth Amendment, to be free from the use of excessive and unreasonable force.

ANSWER: Defendants deny the allegations contained in this paragraph and deny any

illegal or wrongful conduct. 

WHEREFORE, Defendants request that judgment be entered in their favor and against

Plaintiff, for costs of defending this suit and any other relief this Honorable Court deems

necessary and proper.

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COUNT III

(State Law Claim for Malicious Prosecution)

36. Plaintiff realleges paragraphs 1 through 29 as if fully set forth herein.

ANSWER: Defendants’ answers to the foregoing paragraphs 1 through 29 are

incorporated by reference as though fully set forth herein. 

37. Defendant-Officers instituted charges against Plaintiff for resisting arrest.

ANSWER: Defendants admit the allegations contained in this paragraph. 

38. There was not probable cause for such charges.

ANSWER: Defendants deny the allegations contained in this paragraph and deny any

illegal or wrongful conduct. 

39. The charges were terminated in a manner favorable to Plaintiff.

ANSWER: Defendants deny the allegations contained in this paragraph. 

WHEREFORE, Defendants request that judgment be entered in their favor and against

Plaintiff, for costs of defending this suit and any other relief this Honorable Court deems

necessary and proper.

COUNT IV

(State Law Respondeat Superior Claim)

. 40. The acts of the Defendant-Officers described in the above state-law claim were

willful and wanton, and committed in the scope of employment.

ANSWER: Defendants admit that Defendant Officers were acting in scope of their

employment when they encountered Plaintiff. Defendants deny the remaining allegations

contained in this paragraph and deny any illegal or wrongful conduct. 

41. Pursuant to respondeat superior, Defendant CITY OF CHICAGO is liable for its

agents' actions

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ANSWER: Defendants deny that this paragraph contains a complete or accurate

statement of the law.

WHEREFORE, Defendants request that judgment be entered in their favor and against

Plaintiff, for costs of defending this suit and any other relief this Honorable Court deems

necessary and proper.

COUNT V

(Indemnification Claim pursuant to 745 ILCS 10/9-102)

42. The acts of the Defendant-Officers described in the above claims were willful and

wanton, and committed in the scope of employment.

ANSWER: Defendants admit that Defendant Officers were acting in scope of their

employment when they encountered Plaintiff. Defendants deny the remaining allegations

contained in this paragraph and deny any illegal or wrongful conduct. 

43. Pursuant to the Illinois Tort Immunity Act, 745 ILCS 10/9-102, Defendant CITY

OF CHICAGO is liable for any judgments for compensatory damages in this case arising from

the Defendant-Officers' actions.

ANSWER: Defendants admit that, according to Illinois law, under certain

circumstances public entities are directed to pay tort judgments for compensatory damages on

behalf of employees acting within the scope of their employment, but Defendants deny that this

paragraph contains a complete or accurate statement of the law.

WHEREFORE, Defendants request that judgment be entered in their favor and against

Plaintiff, for costs of defending this suit and any other relief this Honorable Court deems

necessary and proper.

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AFFIRMATIVE DEFENSES

1. Defendant Officers are government officials, namely police officers, who perform 

discretionary functions. Defendant Officers admit that they encountered and arrested Plaintiff. 

At all times material to the events alleged in Plaintiff’s Complaint, a reasonably competent police

officer, objectively viewing the facts and circumstances then confronting these Defendant

Officers, could have believed their actions regarding the encounter with and arrest of Plaintiff to

be lawful, in light of clearly established law and the information that these Defendant Officers

possessed. Defendant Officers are therefore entitled to qualified immunity on Plaintiff’s claims

under federal law.

2. As to the state law claims, at the time of the incident alleged in Plaintiff’s 

Complaint, Defendant Officers were City employees, namely police officers, who were engaged

in the execution and enforcement of the law. Under the Tort Immunity Act, an employee or

agent of the City is not liable for his acts or omissions in the execution or enforcement of the law,

unless such act or omission constitutes wilful and wanton conduct. 745 ILCS 10/2-202 (2002). 

The acts and/or omissions of Defendant Officers were not willful nor wanton. Therefore,

Defendant Officers are not liable to Plaintiff.

3. Under the Illinois Tort Immunity Act, Defendant Officers are not liable for any of

the state law claims alleged because a public employee, as such and acting within the scope of his

or her employment, is not liable for any injury caused by the act or omission of another person. 

745 ILCS 10/2-204 (2002).

4. Under the Illinois Tort Immunity Act, Defendant Officers are not liable for any 

of the state law claims alleged because the decision as to what action to take with regard to

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Plaintiff was a discretionary decision for which the City and its employees are immune from

liability. 745 ILCS 10/2-201.

5. To the extent any injuries or damages claimed by Plaintiff were proximately 

caused, in whole or in part, by negligent, willful, wanton and/or other wrongful conduct on the

part of Plaintiff, any verdict or judgment obtained by Plaintiff must be reduced by application of

the principles of comparative fault, by an amount commensurate with the degree of fault

attributed to Plaintiff by the jury in this case. 

6. To the extent that Plaintiff failed to mitigate any of his claimed injuries or

damages, any verdict or judgment obtained by Plaintiff must be reduced by the application of the

principle that Plaintiff has a duty to mitigate attributed to Plaintiff by the jury in this case. 

7. As to Plaintiff’s state law claims, Defendant Officers are not liable to pay 

attorney’s fees as “the law in Illinois clearly is that absent a statute or contractual agreement

‘attorney fees and the ordinary expenses and burdens of litigation are not allowable to the

successful party.” See Kerns v. Engelke, 76 Ill.2d 154, 166 (Ill. 1979)(internal citations omitted).

8. Under the Tort Immunity Act, the City is not required to pay punitive or 

exemplary damages in any action brought directly or indirectly against by the injured party or a

third party. 745 ILCS 10/2-102 (West 2007).

9. As to the state law claims, under the Illinois Tort Immunity Act, Defendant 

Officers are not liable to Plaintiff relating to any action of providing or failure to provide police

service. 745 ILCS 10/4-102 (2002). 

10. Defendant City is not liable to Plaintiff if its employees or agents are not liable to 

Plaintiff. 745 ILCS 10/2-109 (2006).

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JURY DEMAND

Defendants, Kyle Gafney, David Barnes and the City of Chicago, request trial by jury.

Respectfully Submitted,

/s/ Kathryn M. Doi 

KATHRYN M. DOI 

Assistant Corporation Counsel

30 N. LaSalle, Suite 900

Chicago, IL 60602

(312) 744-0742

Attorney No. 6274825

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