EnterIN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

Nicholas Gomez, et al., 

Plaintiffs, 

) 

) 

) 

)

)

)

No. 12 C 4804 

v. ) Judge Bucklo 

K. Kruger (Star no. 17501), et al., 

 Defendants. 

)

)

)

)

)

)

)

MEMORANDUM OPINION AND ORDER 

Plaintiffs Jesus “Mike” Castrejon (“Castrejon”), Omar Nazario (“Nazario”), Edwin 

Mercado (“Mercado”), Osmar Rodriguez (“Rodriguez”), and Nicholas Gomez (“Gomez”) 

have sued a group of twelve Chicago police officers (“defendants,” “the officers”) and 

the City of Chicago.1 The suit arises in connection with plaintiffs’ arrest by defendants 

during an altercation in Chicago’s Humboldt Park neighborhood. Plaintiffs allege several 

violations of their civil rights under 42 U.S.C. § 1983, as well as various causes of action 

under Illinois law. Defendants have moved for partial summary judgment with respect to 

certain of the claims asserted by plaintiffs Castrejon and Nazario. For the reasons 

discussed below, the motion is granted in part and denied in part. 

                                                      

1 The officers are Sergeants K. Kruger, W. Grassi, and J. Schachelmayer; and Officers 

J. Cerda, M. Chernik, S. Corona, R. Delany, G. Frear, M. Mannott, J. Rodriguez, R. 

Trotter, and J. Zambrano. 
2 

I. 

On the evening of June 16, 2011, Rodriguez, Nazario, and Gomez were working 

at a barbershop. Rodriguez witnessed two individuals, whom he believed to be gang 

members, standing in front of the barbershop and flashing gang signs at passing cars. 

He asked the gang members to leave, and when they refused, he asked one of his 

fellow barbers to call the police. 

Between five and ten minutes later, two Chicago police officers arrived on the 

scene. Although the putative gang members soon left, other officers continued to arrive 

on the scene until about thirty officers were present. Plaintiffs claim that the officers 

began lining up and putting on gloves. Castrejon, one of the barbershop’s customers, 

stepped outside to see what was going on. He testified that it looked like the police were 

“ready for war” and that he feared for his life. Pls.’ L.R. 56(b)(3)(C) Stmt. ¶ 7. At 

Rodriguez’s suggestion, Castrejon began to record the events on his cell phone. 

The video, which lasts approximately fifty-three seconds, shows several police 

officers standing outside of the barbershop. See Defs’. Ex. E, Castrejon Cell Phone 

Recording. The officers appear to be speaking with one another and with civilians. 

Castrejon can be heard commenting on events as he pans his cell phone around the 

scene. During the recording, he makes several references to Rodney King, the motorist 

whose beating in 1991 by Los Angeles police officers was captured on video, ultimately 

leading to the criminal conviction of certain of the officers for violating King’s 

constitutional rights. As discussed more fully below, the parties dispute precisely what 

Castrejon said and what his references to Rodney King meant. According to plaintiffs, 

Castrejon said, “It’s going to be some Rodney King.” Pls.’ Resp. Br. at 2. They claim 
3 

that Castrejon was expressing concern about impending police brutality. According to 

defendants, Castrejon said, “[L]et’s see some Rodney King shit up in here!” See Defs.’ 

Reply Br. at 4. They contend that Castrejon was seeking to instigate a confrontation 

with the police. 

It is undisputed that Sergeant Karl Kruger (“Kruger”) and other officers informed 

Castrejon that he did not have their permission to record them. It is also undisputed that 

Castrejon nonetheless continued to record. Near the end of the video, Kruger can be 

heard telling Castrejon to put the phone away. Kruger then says to Castrejon, “You put 

your hands on me, motherfucker? You put your fucking hands on me?” Defs.’ Ex. E; see 

also Defs.’ Ex. B, Trial Tr. at 91:17-19 (Kruger testifying that these statements were 

made by him). A scuffle ensues, and the recording abruptly ends. 

According to plaintiffs, Kruger at this point “launched at Castrejon and pinned him 

against the window of the barbershop and smacked Castrejon’s phone while another 

officer plowed Castrejon in the ribs.” Pls.’ L.R. 56.1(b)(3)(C) Stmt. ¶ 10. Defendants 

deny that Kruger “launched” at Castrejon or smacked his phone, or that anyone 

“plowed” Castrejon in the ribs. They say that Kruger pushed Castrejon against the 

window after Castrejon grabbed Kruger’s wrist and punched Kruger in the chest. Defs.’ 

Resp. to Pls.’ 56. Stmt. ¶¶ 10, 35. 

Once the altercation broke out between Kruger and Castrejon, a full-blown melee 

ensued. Sergeant William Grassi (“Grassi”) told the officers to “Get everybody!” and the 

officers converged on the barbershop and began arresting people. In addition to 

Castrejon, several other plaintiffs claim that the officers used excessive force in 

arresting them. As relevant here, Nazario alleges that the officers dragged him from the 
4 

foyer of the barbershop and proceeded to kick him in the face and head, strike him with 

a baton on his back and neck, and shoot him twice in the buttocks with a taser gun. Pls.’ 

Resp. Br. at 3; Pls.’ L.R. 56.1 Stmt. ¶¶ 14-16. Defendants deny these allegations and 

claim that Nazario was arrested because he rushed at a group of officers and tried to 

punch Sergeant Grassi. Defs.’ Resp. to Pls.’ L.R. 56.1 Stmt. ¶¶ 14-16. 

Eventually, all of the plaintiffs were placed under arrest. All were charged with 

resisting/obstructing a peace officer; and all except Castrejon were charged with mob 

action. Nazario and Castrejon were additionally charged with aggravated battery; and 

Castrejon was charged with violating Illinois’ eavesdropping statute based on his 

recording of the officers without their consent. All of the resisting/obstructing and mob 

action charges were ultimately dropped. After a preliminary hearing, a state court found 

probable cause for the eavesdropping charge against Castrejon and the aggravated 

battery charges against both Castrejon and Nazario. See Preliminary Hr’g Trans., Defs.’ 

Ex. I at 21:22. The eavesdropping charge was later dropped, and in November 2016, 

Castrejon and Nazario were tried and acquitted on the aggravated-battery charges. 

Plaintiffs’ complaint asserts nine causes of action. Four of these allege violations 

of 42 U.S.C. § 1983: excessive force (Count I); failure to intervene (Count II); unlawful 

seizure/false arrest (Count III); and illegal pretrial detention (Count IV). The remaining 

claims arise under Illinois state law: assault (Count V); battery (Count VI); malicious 

prosecution (Count VII); indemnification (Count VIII); and conspiracy (Count IX).2 

                                                      

2 The false-arrest and malicious-prosecution claims (Counts III and VII, respectively) are 

asserted by all of the plaintiffs; the excessive-force, assault, and battery claims (Counts 

I, V, and VI, respectively) are asserted by Castrejon, Nazario, Gomez, and Rodriguez; 

and the failure-to-intervene, illegal-pretrial-detention, and conspiracy claims (Counts II, 

IV, and IX, respectively) are asserted by Castrejon and Nazario. 
5 

Defendants move for summary judgment as to Castrejon’s § 1983 claims for 

failure to intervene, false arrest, and illegal pretrial detention, and well as Castrejon’s 

and Nazario’s conspiracy claim. The motion is granted as to Castrejon’s § 1983 claims 

and denied without prejudice as to the conspiracy claim. 

II. 

A. Castrejon’s Claims for False Arrest, Failure to Intervene, and Illegal Pretrial 

Detention 

Castrejon’s claims for failure to intervene (Count II), false arrest (Count III) and 

illegal pretrial detention (Count IV) are interrelated: the false-arrest claim alleges that 

Castrejon was arrested without probable cause for eavesdropping; his failure-tointervene claim alleges that defendants failed to prevent the false arrest, 3d Am. Compl. 

¶ 50; and his illegal-pretrial-detention claim alleges that he was wrongly detained based 

on the false arrest, id. ¶ 57. Thus, the parties’ briefing proceeds on the assumption that 

if Castrejon’s false arrest-claim fails, his failure-to-intervene and illegal-pretrial-detention 

claims fail as well. See Defs.’ Br. at 7-8; Pls.’ Resp. Br. at 7 n.2. 

“To prevail on a false-arrest claim under § 1983, a plaintiff must show that there 

was no probable cause for his arrest.” Neita v. City of Chicago, 830 F.3d 494, 497 (7th 

Cir. 2016). “Probable cause to arrest exists if the totality of the circumstances known to 

the officer at the time of the arrest would warrant a reasonable person in believing that 

the arrestee had committed, was committing, or was about to commit a crime.” 

Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013). 

Defendants argue that there was probable cause to arrest Castrejon for violating 

Illinois’ eavesdropping statute because it is undisputed that he knowingly recorded the 

officers on his cell phone without their consent. Defendants further contend, however, 
6 

that even if probable cause for the arrest was lacking, they are entitled to summary 

judgment on Castrejon’s false-arrest claim under the doctrine of qualified immunity.

While the “probable-cause standard inherently allows room for reasonable mistakes ... 

qualified immunity affords an added layer of protection by shielding officers from suit for 

damages if a reasonable officer could have believed the arrest to be lawful, in light of 

clearly established law and the information the arresting officers possessed.” Abbott v. 

Sangamon Cty., Ill., 705 F.3d 706, 714 (7th Cir. 2013) (citation, brackets, and quotation 

marks omitted). “Often termed ‘arguable probable cause,’ qualified immunity in this 

context protects officers who reasonably but mistakenly believe that probable cause 

exists.” Id. at 714-15 (citation omitted). 

The qualified immunity standard is a “demanding” one, D.C. v. Wesby, 138 S. Ct. 

577, 589 (2018), and “the plaintiff has the burden of defeating it once the defendants 

raise it,” Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017). To overcome 

defendants’ assertion of qualified immunity, “the plaintiff must show (1) that the 

defendant violated a constitutional right, when construing the facts in the light most 

favorable to the plaintiff, and (2) that the right was clearly established at the time of the 

alleged violation, such that it would have been clear to a reasonable actor that her 

conduct was unlawful.” Id. at 613. Courts have discretion to address the two prongs of 

the qualified immunity inquiry in either order. See, e.g., Pearson v. Callahan, 555 U.S. 

223, 236-37 (2009). Because plaintiffs advance the same arguments as to both prongs, 

and because the second prong is dispositive here, I need only address the question of 

whether defendants violated a clearly established right — or, put differently, whether, 
7 

under the circumstances in question, Sergeant Kruger had arguable probable cause to 

arrest Castrejon for eavesdropping. 

“A plaintiff can show that a right is ‘clearly established’ by statute or constitution 

in at least two ways: (1) he can point to a clearly analogous case establishing the right 

to be free from the conduct at issue; or (2) he can show that the conduct was ‘so 

egregious that no reasonable person could have believed that it would not violate 

established rights.’” Beaman v. Freesmeyer, 776 F.3d 500, 508–09 (7th Cir. 2015) 

(quoting Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001)). Here, plaintiffs 

cite no case authority to show that Kruger lacked arguable probable cause to arrest 

Castrejon for eavesdropping. Accordingly, plaintiffs have the burden of showing that 

Castrejon’s arrest for eavesdropping was so egregious that no reasonable person could 

have failed to realize that it violated clearly established rights. Plaintiffs have failed to 

meet this burden. 

Plaintiffs begin by arguing that Kruger could not reasonably have believed that he 

had probable cause (or arguable probable cause) to arrest Castrejon for eavesdropping 

because, by its plain terms, the statute applies only to the recording of “conversations.” 

At the time in question, the eavesdropping law provided that a “person commits 

eavesdropping when he...[k]nowingly and intentionally uses an eavesdropping device 

for the purpose of hearing or recording all or any part of any conversation ... unless he 

does so ... with the consent of all of the parties to such conversation.” 720 ILCS 5/14-

2(a)(1)(A).3 According to plaintiffs, Castrejon’s purpose in making the cell phone video 

                                                      

3 As discussed in greater detail below, the constitutionality of the eavesdropping statute 

was brought into question by the Seventh Circuit decision in American Civil Liberties 

Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), and was ultimately declared 
8 

was not to record the officers’ conversations. Rather, they maintain, “[b]y filming openly 

and referencing Rodney King, Castrejon expressed his objective: to capture the 

Defendants’ violent crimes against him and to deter them from committing those crimes 

under the threat of being caught on film.” Pls.’ Resp. Br. at 8. As evidence that Kruger 

himself did not believe that Castrejon’s purpose was to record conversations, plaintiffs 

point out that the criminal complaint charging Castrejon with eavesdropping makes no 

reference to “conversations.” The offense description says only that Castrejon 

“‘knowingly used an eavesdropping audio and video recording device to record police 

officers acting within their official duties, without having their consent.’” Pls.’ Resp. Br. at 

8-9 (citing Defs.’ Ex. F, Eavesdropping Criminal Complaint).4 Additionally, plaintiffs cite 

Kruger’s deposition testimony that he could not remember hearing any conversations 

between police officers at the time of the incident. See Pls.’ Ex. U, K. Kruger Dep. at 

114:10-14. 

This argument is unpersuasive. To begin with, it is irrelevant whether Kruger 

himself actually believed that Castrejon’s purpose in recording the officers was to 

                                                      

unconstitutional by the Illinois Supreme Court in People v. Clark, 6 N.E.3d 154, 162 (Ill. 

2014). As a result, the law was amended in 2014. See P.A. 99-352, § 20-155, eff. Jan. 

1, 2016. For purposes of this motion, only the version in effect at the time of Castrejon’s 

arrest is relevant. 

4 I note although the original typewritten description of the offense includes no reference 

to the recording of a conversation, portions of the description were later crossed-out and 

replaced with handwritten notations that do refer to a “conversation.” When the 

handwritten edits are taken into account, the description says that Castrejon “knowingly 

used an eavesdropping device to record all or any part of a conversation, to wit: to 

record police officers acting within their official duties, without having their consent.” 

Defs.’ Ex. F. However, defendants do not mention the handwritten changes to the 

document and do not dispute plaintiffs’ assertion that the eavesdropping complaint 

includes no reference to conversations. 
9 

capture their conversations. The test for arguable probable cause, like the test for 

ordinary probable cause, is objective. See, e.g., Ulrich v. Pope Cty., 715 F.3d 1054, 

1060 (8th Cir. 2013) (“[T]he existence of probable cause or arguable probable cause 

depends on the viewpoint of an objectively reasonable officer, not the viewpoint of the 

particular arresting officer.”) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). The 

question is thus not whether Kruger believed that Castrejon’s purpose in making the 

video was to capture the officers’ conversations; it is whether an officer in Kruger’s 

position could reasonably have believed that Castrejon’s purpose was to capture the 

conversations. 

The deeper problem with plaintiffs’ argument, however, is that it construes the 

term “conversation” far too narrowly. Although plaintiffs are not entirely clear on this 

point, they appear to interpret “conversation” in the everyday sense as a discussion 

between two or more people about some topic or other. See, e.g., Conversation, 

Cambridge Dictionary (defining “conversation” as “an informal, usually private, talk in 

which two or more people exchange thoughts, feelings, or ideas, or in which news or 

information is given or discussed”), https:// 

dictionary.cambridge.org/us/dictionary/english/conversation. Plaintiffs offer no basis for 

such an interpretation, however, and indeed they ignore the definition provided in the 

statute itself. Section 5/14-1(d) of the eavesdropping law defines “conversation” as “any

oral communication between 2 or more persons regardless of whether one or more of 

the parties intended their communication to be of a private nature under circumstances 

justifying that expectation.” 720 Ill. Comp. Stat. Ann. 5/14-1(d) (emphasis added). Given 

the breadth of this definition, plaintiffs have failed to explain why Kruger could not 
10

reasonably have believed that Castrejon was recording “conversations” within the 

meaning of the statute. Castrejon’s video plainly captured “oral communications” by 

Kruger and other officers at the scene. 

That the eavesdropping statute’s definition of “conversation” should be 

understood broadly – or at any rate, broadly enough to encompass Castrejon’s 

recording – draws additional support from the Seventh Circuit’s decision in American 

Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012). In Alvarez, the 

Illinois ACLU sought a preliminary injunction to prevent the Cook County State’s 

Attorney from prosecuting participants in its “police accountability program” under the 

eavesdropping statute. A key part of the program was to “openly make audiovisual 

recordings of police officers performing their duties in public places and speaking at a 

volume audible to bystanders.” Id. at 586. The ACLU claimed that application of the 

eavesdropping statute to criminalize their recordings would violate the First 

Amendment. 

The Seventh Circuit held that the preliminary injunction was warranted, 

concluding that the ACLU had shown a likelihood of success on the merits of its first 

amendment challenge to the eavesdropping law. In reaching this conclusion, the court 

emphasized the wide range of communications covered by the law. The court noted, for 

example, that, “[u]nlike the federal wiretapping statute and the eavesdropping laws of 

most other states, the gravamen of the Illinois eavesdropping offense is not the secret 

interception or surreptitious recording of a private communication.” Id. at 595. “Instead,” 

the court explained, “the statute sweeps much more broadly, banning all audio 

recording of any oral communication absent consent of the parties regardless of 
11

whether the communication is or was intended to be private.” Id.; see also id. at 586-87 

(“Illinois has criminalized the nonconsensual recording of most any oral communication, 

including recordings of public officials doing the public’s business in public and 

regardless of whether the recording is open or surreptitious.”). Under the court’s 

interpretation in Alvarez, the communications captured by Castrejon’s recording can 

reasonably be regarded as “conversations” within the meaning of the eavesdropping 

statute. 

 I pause here to note that Alvarez’s holding regarding the eavesdropping statute’s 

unconstitutionality does not negate the existence of probable cause (or arguable 

probable cause) for Castrejon’s arrest. Nor is defendants’ qualified immunity argument 

defeated by the fact that several Illinois state courts, including the Illinois Supreme 

Court, have declared the statute unconstitutional. See People v. Clark, 6 N.E.3d 154, 

156 (Ill. 2014); People v. Melongo, 6 N.E.3d 120 (Ill. App. Ct. 2014); People v. Drew, 

No. 10–cr–46 (Cook Cnty., Ill., Cir. Ct. Mar. 7, 2012); People v. Allison, No. 2009–CF–

50 (Crawford Cnty., Ill. Cir. Ct. Ill., Cir. Ct. Sept. 5, 2011). As an initial matter, plaintiffs 

themselves do not advance this argument – despite the defendants’ anticipation of the 

issue in their opening brief. Accordingly, plaintiffs have forfeited any argument based on 

the statute’s unconstitutionality. See, e.g., Salas v. Wisconsin Dep’t of Corr., 493 F.3d 

913, 924 (7th Cir. 2007) (party forfeits any argument it fails to raise in response to 

summary judgment). In any case, an arrest based on a good-faith reliance on a law 

remains valid even if that law is later declared invalid. See, e.g., United States v. 

Charles, 801 F.3d 855, 861 (7th Cir. 2015) (“It’s true that Chicago’s handgun ban was 

later invalidated, as was the Illinois concealed-carry law. But the ‘[p]olice are charged to 
12

enforce laws until and unless they are declared unconstitutional,’ so a search based on 

a violation of a law later declared unconstitutional does not necessarily violate the 

Fourth Amendment.”) (quoting Michigan v. DeFillippo, 443 U.S. 31, 38 (1979)) (citations 

omitted); Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) (“[A]n arrest made in 

good-faith reliance on an ordinance is valid regardless of a subsequent judicial 

determination of its unconstitutionality.”) (citations omitted). 

To be sure, probable cause cannot be based on a law that is “so grossly and 

flagrantly unconstitutional that any person of reasonable prudence would be bound to 

see its flaws.” DeFillippo, 443 U.S. at 36. But the eavesdropping statute does not meet 

that standard. Notably, Judge Posner filed a dissent in Alvarez defending the 

eavesdropping law’s constitutionality. See Am. Civil Liberties Union of Illinois v. Alvarez, 

679 F.3d 583, 608 (7th Cir. 2012) (Posner, J., dissenting). Given that the Alvarez panel 

itself was divided over the question, it is difficult to conclude that the law’s 

unconstitutionality should have been obvious to “any person of reasonable prudence.”5

In addition, prior to Alvarez, several individuals had been prosecuted under the 

                                                      

5 I note that other circuits have reached different conclusions regarding whether the 

constitutionality vel non of other state eavesdropping statutes was clearly established 

for qualified immunity purposes. Compare Kelly v. Borough of Carlisle, 622 F.3d 248, 

262 (3d Cir. 2010) (“[W]e conclude there was insufficient case law establishing a right to 

videotape police officers during a traffic stop to put a reasonably competent officer on 

‘fair notice’ that seizing a camera or arresting an individual for videotaping police during 

the stop would violate the First Amendment.”); and Szymecki v. Houck, 353 F. App’x 

852, 853 (4th Cir. 2009 (affirming district court’s conclusion that the “First Amendment 

right to record police activities on public property was not clearly established in this 

circuit at the time of the alleged conduct”), with Glik v. Cunniffe, 655 F.3d 78, 88 (1st 

Cir. 2011) (no arguable probable cause to arrest for violating state eavesdropping law 

where plaintiff “was openly recording the police officers and that they were aware of his 

surveillance”). 
13

eavesdropping statute for recording police officers in the course of their official duties. 

See Alvarez, 679 F.3d at 593 n.2 (collecting cases). This, too, militates against the 

notion that the law’s unconstitutionality should have been obvious. See, e.g., Frobe v. 

Vill. of Lindenhurst, No. 11 C 1722, 2014 WL 902878, at *5 (N.D. Ill. Mar. 7, 2014)

(citing prior prosecutions under the eavesdropping statute in rejecting plaintiff’s 

contention that Illinois’ eavesdropping law was so grossly unconstitutional that it could 

not have provided probable cause for his arrest). 

I am unconvinced, then, by plaintiffs’ argument that Kruger lacked arguable 

probable cause to arrest Castrejon because Castrejon’s cell phone recording did not 

record “conversations” within the meaning of the eavesdropping law. Even assuming 

that the officers’ communications were not in fact “conversations” for purposes of the 

statute, it would not have been unreasonable for Kruger to have believed that they 

were. Indeed, given that the probable-cause standard allows for reasonable mistakes of 

law, Kruger may well have had ordinary probable cause for the arrest. See, e.g., 

Gutierrez, 722 F.3d at 1008 (“Based as it is on probabilities rather than hard certainties, 

the probable-cause standard inherently allows room for reasonable mistakes.”) (citing 

Brinegar v. United States, 338 U.S. 160, 176 (1949)); Wilbon v. Plovanich, No. 12 C 

1132, 2015 WL 4080169, at *4 (N.D. Ill. July 6, 2015) (“Police officers, of course, 

sometimes make mistakes. If the mistake (whether of law or of fact) is objectively 

reasonable, an officer acting in error has not violated the Constitution.”) (citing Heien v. 

North Carolina, 135 S. Ct. 530, 532–33, 536 (2014)). 

Plaintiffs go on to argue, however, that even if Castrejon recorded the officers’ 

conversations for purposes of the eavesdropping law, the recording was nonetheless 
14

lawful by virtue of a specific exception in the statute. In particular, plaintiffs invoke the 

statute’s so-called “fear of crime” exemption, which permits the “[r]ecording of a 

conversation made by or at the request of a person ... who is a party to the 

conversation, under reasonable suspicion that another party to the conversation is 

committing, is about to commit, or has committed a criminal offense” and where “there 

is reason to believe that evidence of the criminal offense may be obtained by the 

recording.” 720 ILCS 5/14-3(i). According to plaintiffs, Castrejon reasonably suspected 

at the time he recorded the video that the officers were about to engage in criminal 

activity (i.e., another “Rodney King” incident) and wanted to obtain evidence of the 

crime. 

This argument is no more persuasive than the first. To defeat defendants’ 

qualified immunity defense on this ground, plaintiffs must show that, at the time of 

Castrejon’s arrest, it was clearly established that his recording fell within the 

eavesdropping statute’s fear-of-crime exception. To make this showing, plaintiffs must 

either cite a clearly analogous case on point or demonstrate that Kruger’s conduct was 

so egregious that no reasonable person could have failed to see that it violated 

Castrejon’s rights. See, e.g., Beaman, 776 F.3d at 508–09. Once again, plaintiffs opt for 

the second tack. Their argument is based on Castrejon’s references to Rodney King 

during the recording. According to plaintiffs, Castrejon’s remarks leave no doubt that he 

was recording the officers because he feared they were about to turn violent. 

As previously noted, the parties hold sharply different views regarding how 

Castrejon’s statements are to be understood, and indeed about what Castrejon actually 

said. Plaintiffs claim that Castrejon said, “It’s going to be some Rodney King.” Pls.’ 
15

Resp. Br. at 2. Defendants claim that Castrejon said, “[L]et’s see some Rodney King 

shit up in here!” See Defs.’ Reply Br. at 4. Because factual disputes in the summary

judgment context are to be resolved in the nonmoving party’s favor, I might ordinarily be 

required simply to accept plaintiffs’ account of Castrejon’s statements. As the Supreme 

Court has explained, however, only genuine factual disputes must be resolved in favor 

of the nonmoving party. See, e.g., Scott v. Harris, 550 U.S. 372, 380 (2007) (“At the 

summary judgment stage, facts must be viewed in the light most favorable to the 

nonmoving party only if there is a ‘genuine’ dispute as to those facts.”) (quoting Fed. 

Rule Civ. Proc. 56(c)). Thus, the Court has held that “[w]hen opposing parties tell two 

different stories, one of which is blatantly contradicted by the record, so that no 

reasonable jury could believe it, a court should not adopt that version of the facts for 

purposes of ruling on a motion for summary judgment.” Id.; see also Williams v. Brooks, 

809 F.3d 936, 942 (7th Cir. 2016) (“When the evidence includes a videotape of the 

relevant events, the Court should not adopt the nonmoving party’s version of the events 

when that version is blatantly contradicted by the videotape.”). 

Here, there can be no genuine dispute over what Castrejon actually said: 

plaintiffs’ account of Castrejon’s statements is flatly contradicted by the video. At about 

four seconds into the recording, Castrejon unmistakably says, “Right, right .... Let’s see 

some Rod-- Let’s see some Rodney King shit up in this mother. Some Rodney King shit 

up in this mother.” Ex. E. Later, at about twenty seconds into the recording, he says, 

“Rodney King, baby. Yeah, yeah, yeah.” Id. Still later, Castrejon can be heard making 
16

derogatory remarks about the police in Spanish.6 Significantly, plaintiffs do not support 

their characterization of Castrejon’s remarks by citing to the recording itself. Instead, 

they rely entirely on Castrejon’s deposition testimony regarding what he said. 

Given this discrepancy, I may rely on the recording rather than plaintiffs’ account 

of Castrejon’s statements. I may do so, however, only if there is no reason to doubt the 

recording’s accuracy. See Scott, 550 U.S. at 378 (relying on video instead of plaintiff’s 

version of events was because “[t]here [we]re no allegations or indications that this 

videotape was doctored or altered in any way, nor any contention that what it depicts 

differs from what actually happened”). Here, a potential problem arises: during his 

deposition, Castrejon questioned the accuracy of the recording. After viewing the video 

at his deposition, Castrejon acknowledged that the statement heard on the recording 

was, “Right, right. Let’s see some Rodney King shit up in here,” Defs.’ Ex. C at 57:3-7. 

Nevertheless, he insisted that what he had actually said was, “Right, right. It’s going to 

be some Rodney King shit.” Id. at 57:1-2. When asked to explain the inconsistency, 

Castrejon speculated that the recording had been tampered with. Id. at 57:12-19 (“Q. So 

is it your testimony that this audio is somehow different [from what you said]? A. Yes. Q. 

Or doctored? A. Yes. Q. It’s your claim that that is not what you were saying on the 

audio? A. Yes.”); see also id. at 58:7-10 (“Q. Do you have any explanation as to why the 

audio would say something different than you claim you said? A. Manufacturing the 

                                                      

6 See Defs.’ Ex. C, Castrejon Dep. at 61:1-17 (“Q. Okay. We hear a sentence or 

whatever in Spanish? A. Yes. Q. And is that you? A. Yes. Q. Okay. And what were you 

saying? A. ... These guys are getting stupid or I say pendejo. There’s different meanings 

to that. These guys are getting ignorant. Q. There’s one meaning of pendejo that means 

assholes, true? A. Yeah. Q. And is that the meaning that you were using for that word? 

A. Yes.”). 
17

audio.”); id. at 127:7-9 (“Q. Okay. And it’s your testimony that you were not trying to 

incite people or rile people by walking around with your cell phone and making Rodney 

King type comments? A Yeah. No, I was saying it’s going to be some - you know, not 

see some. Like I said, it was manufactured, you know.”). Indeed, Castrejon adhered to 

this theory even after admitting that the video played during his deposition was the 

same one that had been played, apparently without objection, at his criminal trial. Id. at 

58:4-6. 

However, while Castrejon’s testimony might otherwise raise a factual dispute 

regarding the recording’s accuracy, that is not the case here. Significantly, nowhere in 

their opposition to the summary judgment motion do plaintiffs make any reference to 

Castrejon’s suggestion that the recording might have been altered. On the contrary, 

plaintiffs appear to have taken great pains when citing Castrejon’s deposition to avoid 

his remarks on this point. Nor do plaintiffs’ response brief or Local Rule 56.1 statement 

contain any hint of the notion that the recording might be less than veridical. 

(Defendants, for their part, are likewise silent on the matter). Accordingly, plaintiffs have 

forfeited any argument concerning the recording’s accuracy, see, e.g., Salas v. 

Wisconsin Dep’t of Corr., 493 F.3d 913, 924 (7th Cir. 2007), and for purposes of this 

motion, I confine myself to the position advanced in plaintiffs’ brief and Local Rule 56.1 

Statement, see, e.g., Bilal v. Rotec Indus., Inc., 326 F. App’x 949, 956 (7th Cir. 2009) 

(observing that “district courts are not obliged to go beyond parties’ Rule 56.1 

statements by conducting their own investigation of the record” and that courts have the 

“discretion to limit their consideration to parties’ Local Rule 56.1 submissions”). Thus, 

because plaintiffs’ characterization of Castrejon’s statements is inconsistent with the 
18

recording, I rely on the recording. See, e.g., Scott, 550 U.S. at 380; Williams, 809 F.3d 

at 942. 

Based on Castrejon’s comments as they are documented in the video, Kruger 

could reasonably have believed that Castrejon was recording the officers for reasons 

other than his fear for his safety and his desire to capture evidence of police 

misconduct. In fact, an officer in Sergeant Kruger’s position could reasonably have 

arrived at precisely the opposite conclusion: that Castrejon began recording in an 

attempt to provoke a confrontation with the police. In both tone and substance, 

Castrejon’s comment, “Let’s see some ... Rodney King shit up in this mother,” can 

naturally be understood as encouraging the officers to respond aggressively to the 

situation. His statement, “Rodney King, baby. Yeah, yeah, yeah,” could likewise 

reasonably have been viewed as an attempt to goad the officers into violence. This is 

not to say that it would be impossible for any reasonable person to conclude based on 

the recording that the fear of crime exception applied in this instance – i.e., that 

Castrejon made the recording to document another potential “Rodney King incident.” 

For purposes of the qualified immunity inquiry, however, the question is merely whether 

a person could reasonably (even if perhaps mistakenly) conclude that the exception did 

not apply and that probable cause therefore existed. The answer to that question is yes. 

In sum, plaintiffs have failed to show that Sergeant Kruger lacked arguable 

probable cause to arrest Castrejon for violating the eavesdropping statute. On this 

record, Kruger could reasonably have believed that the oral communications recorded 

by Castrejon constituted “conversations” for purposes of the statute. Kruger could 

likewise reasonably have believed that the recording did not fall within the statute’s fear-
19

of-crime exception. It follows that defendants are entitled to qualified immunity with 

respect to Castrejon’s false-arrest claim. And, as already explained, the same 

conclusion follows a fortiori for Castrejon’s failure-to-intervene claim and his illegalpretrial-detention claim. Thus, defendants’ motion for summary judgment as to these 

claims is granted. 

B. Castrejon’s and Nazario’s Claim for Conspiracy 

In Count IX, Castrejon and Nazario assert a claim for civil conspiracy under 

Illinois law. “Civil conspiracy is defined as ‘a combination of two or more persons for the 

purpose of accomplishing by concerted action either an unlawful purpose or a lawful 

purpose by unlawful means.’” McClure v. Owens Corning Fiberglas Corp., 720 N.E.2d 

242, 258 (Ill. 1999) (quoting Buckner v. Atlantic Plant Maintenance, Inc., 694 N.E.2d 

565 (Ill. 1998)). Thus, “to state a claim for civil conspiracy, a plaintiff must allege an 

agreement and a tortious act committed in furtherance of that agreement.” Id. (citing 

Adcock v. Brakegate, Ltd., 645 N.E.2d 888 (Ill. 1994)). 

Plaintiffs allege that the officers conspired to maliciously prosecute Castrejon and 

Nazario. (Although the complaint alleges malicious prosecution on behalf of all of the 

plaintiffs, the alleged conspiracy to engage in malicious prosecution is asserted only by 

Castrejon and Nazario). According to plaintiffs, the purpose of the conspiracy was to 

cover up the officers’ use of excessive force in arresting the plaintiffs. See Pls.’ Resp. 

Br. at 12 n.5 (contending that the “unlawful purpose of maliciously prosecuting Plaintiffs 

was to cover-up Defendants’ use of excessive force,” and the “tortious act in furtherance 

of the conspiracy, was the malicious prosecution itself”). 
20

In support of the conspiracy claim, plaintiffs point to evidence of various ways in 

which the officers worked together to advance Castrejon’s and Nazario’s prosecution on 

the various offenses they were charged with. For example, they point to testimony by 

one of the officers that he conferred with other officers at the police station following 

plaintiffs’ arrest, so that he “could, you know, know the story and know the probable 

cause to complete the arrest reports.” Pls.’ Ex. R, R. Delany Dep. at 25:7-9. Plaintiffs 

also cite the fact that many of the criminal complaints filed by the officers contained 

identical or almost identical language. Additionally, plaintiffs point to testimony by 

various officers that they met as a group with attorneys (including prosecutors from the 

State’s Attorney’s Office) to discuss the case against Castrejon and Nazario. Above all, 

plaintiffs contend, the conspiracy is demonstrated by the fact that the defendants’ 

charges against Castrejon, Nazario, and the other plaintiffs were false. If none of the 

plaintiffs committed any offenses, they argue, the fact that they were nonetheless 

charged with crimes, and the fact that so many officers were involved, is difficult to 

explain without a conspiratorial agreement of some kind. 

Defendants’ argument for summary judgment on the conspiracy claim is 

exceedingly narrow: they challenge the sufficiency of the foregoing evidence only as to 

the agreement element of the claim. It is impractical, however, if not impossible, to 

assess the “agreement” element of the claim in isolation from its other elements. It 

makes little sense, for example, to ask whether defendants reached an “agreement” in 

the abstract. The officers may have agreed about any number of things in connection 

with Castrejon’s and Nazario’s arrests. For example, they may have reached an 

agreement regarding who would transport them to the police station or who would 
21

process them once they arrived. Obviously, defendants’ agreement about issues of this 

sort is irrelevant to the conspiracy claim. For purposes of establishing a conspiracy, the 

question is whether defendants agreed specifically to maliciously prosecute Castrejon 

and Nazario. 

That issue cannot meaningfully be addressed without addressing the merits of 

plaintiffs’ underlying malicious-prosecution claim. If plaintiffs were not in fact maliciously 

prosecuted, their conspiracy claim fails as a matter of law. See, e.g., Indeck N. Am. 

Power Fund, L.P. v. Norweb PLC, 735 N.E.2d 649, 662 (Ill. App. Ct. 2000) (“[A] 

conspiracy is not an independent tort. Where ... a plaintiff fails to state an independent 

cause of action underlying its conspiracy allegations, the claim for a conspiracy also 

fails.”) (citing Adcock, 645 N.E.2d at 888). On the other hand, as already noted, if 

Castrejon and Nazario were maliciously prosecuted, the number of officers involved in 

bringing the false charges against them (and the other plaintiffs) is suggestive of a 

conspiracy. Plaintiffs’ conspiracy claim similarly implicates the merits of their excessiveforce claim, given plaintiffs’ theory that the officers hatched the conspiracy to cover up 

their use of excessive force. 

 Further, even if it might be conceptually feasible to address the agreement 

element of the conspiracy claim apart from the claim’s other elements – and the 

conspiracy claim apart from the malicious-prosecution and excessive-force claims – 

defendants have offered no particular reason for doing so. For example, there is no 

reason to believe that deciding the conspiracy claim at this juncture will lead to more 

efficient resolution of the case. Regardless of the conspiracy claim’s disposition, a trial 

will be necessary to adjudicate the merits of plaintiffs’ remaining claims. While 
22

defendants have won summary judgment as to Castrejon’s claims for false arrest, 

failure to intervene, and illegal pretrial detention, those claims remain in play as to other 

plaintiffs. And Castrejon’s and other plaintiffs’ claims for excessive force, malicious 

prosecution, assault, and battery will go forward as well. Given defendants’ assertion of 

qualified immunity, there was an important reason for deciding the summary judgment 

motion as to Castrejon’s federal claims in Counts II, III, and IV. See, e.g., Currie v. 

Chhabra, 728 F.3d 626, 629 (7th Cir. 2013) (“[I]deally an immunity defense should be 

resolved at the earliest stage possible.”). But this reason does not apply to the 

conspiracy claim, which is asserted under state law and which is not subject to the 

qualified immunity defense. 

In short, under these circumstances, adjudication of the conspiracy claim is best 

deferred until it can be addressed in tandem with plaintiffs’ malicious-prosecution and 

excessive-force claims. Cf. Jacob v. Killian, 437 F. App’x 460, 467 (6th Cir. 2011) 

(“[T]he court may decline to decide a specific factual issue ... because the court ‘may 

conclude that it is better to leave open for trial facts and issues that may be better 

illuminated by the trial of related facts that must be tried in any event.’”) (quoting Fed. R. 

Civ. P. 56 Advisory Committee Notes); 11 Moore’s Federal Practice - Civil § 56.07 

(2019) (noting that “[h]istorically ... courts have had some discretion to deny an 

otherwise proper summary judgment motion on the grounds that ... [f]urther pretrial 

activity or trial adjudication will sharpen the facts and law at issue and lead to a more 

accurate or just decision.”). 

In sum, I decline to address defendants’ motion for summary judgment as to 

Count IX and accordingly deny the motion as to that count. 
23

III. 

For the reasons discussed above, defendants’ motion for summary judgment is 

granted as to Counts II, III, and IV, insofar as they are asserted by Castrejon. I decline 

to address the conspiracy claim asserted by Castrejon and Nazario and therefore deny 

the motion as to Count IX. 

__________________________ 

 Elaine E. Bucklo

 United States District Judge 

Dated: July 24, 2019