-13-
reasonable officer on the scene, rather than with the 20/20 vision
of hindsight,” the facts can only support the conclusion that
Taylor’s conduct instilled in Majid an objectively reasonable
belief that his life was in immediate danger, and thus justified
the use of deadly force. O’Connor, 490 U.S. at 396.

In sum, based on the present record, we conclude as a matter
of law that Majid’s use of force was warranted under the standard

articulated in Garner.? Accordingly, we grant defendants’ motion

2? In reaching this conclusion, we are mindful of the

Seventh Circuit’s cautionary instruction that “[t]he award of
summary judgment to the defense in deadly force cases may be made
only with particular care where the officer defendant is the only
witness left alive to testify. In any self-defense case, a
defendant knows that the only person likely to contradict him or
her is beyond reach.” Plakas _v. Drinski, 19 F.3d 1143, 1147 (7th
Cir. 1994). This case, however, is different. As a technical
matter, not only do we lack Taylor’s version, but we have no
evidence, let alone argument, to discredit defendants’ version.
Moreover, this is not a case “where the officer defendant is the
only witness left alive to testify.” Id. Indeed, Majid’s
version of events was independently and wholly corroborated by
McNulty, a friend of Taylor’s since high school, in a written
statement made only hours after the shooting. McNulty stated the
following: that Taylor refused Majid’s orders to show his hands;
that Taylor refused to open the car door; that Taylor and Majid
began “tussling” because Taylor would not put his hands on the
hood; that Taylor “spinned around . . . and hit the police
officer with his elbow and started running;” that Majid ran after
him “yelling for Mike to stop and freeze;” that he saw Taylor
holding a gun at his waist as he ran; that when Majid caught him
both he and Taylor fell to the ground; and “that the police
officer got up first and as Mike was getting up he reached for
his gun at his waist and pulled the gun out and that’s when the
police officer shot Mike.” (Majid’s 56. 1 Stat., Ex. J.)

It bears emphasis, then, that the outcome here is not merely
the mechanical result of a pleading default. Though the record
before us may be incomplete, it does appear to be credible.



-4-

Taylor’s friends noticed that Taylor had a handgun tucked into the
rear waistband of his pants. At one point, the woman who owned the
apartment told Taylor to stay on the back porch because she did not
want her child near his gun.

At approximately 6:00 p.m., Taylor left the apartment. He
then met his friend Nathaniel McNulty, who was sitting in his car
parked on a street near the apartment. Taylor asked McNulty for
a ride to the intersection of Pulaski and Augusta on Chicago’s
North Side. McNuity offered to give him a ride if Taylor agreed
to put air in one of McNulty’s tires. Taylor got into the
passenger seat of McNulty’s car. Immediately thereafter, two men
approached the passenger side of McNulty’s car. One of the men,
with a ten dollar bill in hand, asked Taylor if he had any “rocks,”
referring to crack cocaine. Taylor told the man that he already
owed Taylor “a sawbuck” (slang for a ten dollar bill).

At that point, Officers Majid and Lopez pulled up behind
McNulty’s car. The officers had seen Taylor speaking to the men on
the street, and knew that the area was known for its heavy
narcotics trafficking. As the officers pulled up, Majid noticed
that Taylor was bending down in his seat and moving around. The
officers decided to talk to the men, got out of their car, and
approached McNulty’s vehicle. The two men standing at the
passenger door of McNulty’s car began to walk away. Lopez

approached the driver side occupied by McNulty, while Majid stepped


-9-
it is clear that Majid “seized” Taylor when he shot him. The only
issue presented by plaintiff’s Fourth Amendment claim, then, is
whether Majid’s use of deadly force was reasonable. Our analysis
begins with the Supreme Court’s decision in Garner. That case
posed the question of whether an officer could lawfully use deadly
force to apprehend a fleeing and apparently unarmed felony suspect.
Garner, 471 U.S. at 3. The Supreme Court flatly rejected any rule
that would constitutionally allow the use of deadly force to stop
all felony suspects, but expressly authorized the use of deadly
force under the following circumstances:

Where the officer has probable cause to

believe that the suspect poses a threat

of serious physical harm, either to the

officer or to others, it is not

constitutionally unreasonable to prevent

escape by using deadly force. Thus,

if the suspect threatens the officer with

a weapon or there is probable cause to

believe that he has committed a crime

involving the infliction or threatened

infliction of serious physical harm,

deadly force may be used if necessary to

prevent escape, and if, where feasible,

some warning has been given.
Id. at 11-12. In evaluating the present facts under the Garner
standard, we are further guided by the Supreme Court’s opinion in
Graham v. O'Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989). In O'Connor, the Court clarified that in assessing the
reasonableness of a particular officer’s use of force, his conduct

“must be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Id. at


-6-

Majid could only see that he was clutching his waistband. At some
point during the chase, after Taylor had broken free once, and
following repeated orders to stop, Majid drew his gun. The pursuit
ended when Taylor stumbled, allowing Majid to catch up to him and
grab his shirt. After another couple of steps, both Taylor and
Majid fell to the ground. Majid stood up first, and ordered Taylor
to stay on the ground.

Taylor began to stand up, pulled his gun from his waistband
and, from approximately three feet away, pointed it at Majid.
Majid knocked Taylor’s gun from his grip with his left hand, and at
the same time, shot Taylor with his right hand. Majid fired one
shot which hit Taylor in his abdomen. Taylor fell to the ground,
face-up, and reached for his (Taylor’s) handgun lying next to him.
Majid handcuffed Taylor, then picked up his gun. An ambulance
arrived at the scene at approximately 6:28 p.m., about eight
minutes after being dispatched. Taylor died of a single gunshot
to his upper left abdomen.

Defendants’ 56. 1 statements refer to the affidavit of Officer
Patrick O’Donovan, who arrived at the scene following the shooting.
After Mirandizing Taylor, O’Donovan asked him if he could ask him
a series of questions, to which Taylor nodded “yes.” Because of
the medical attention he was receiving, Taylor was unable to speak.
O'Donovan asked Taylor if he had intended to shoot Majid. Taylor

nodded his head “no.” Then, when O’ Donovan asked Taylor if he was



~5-
up to the passenger side where Taylor was seated. Lopez ordered
the two men who had started to leave to return to the car and to
put their hands on the car’s trunk. The two men complied. Lopez
then ordered McNulty to turn off the car’s engine. McNulty turned
off the engine and stuck his hands out the car window.

At the same time, Majid ordered Taylor to show his hands, but
Taylor initially refused. Instead, Taylor kept his hands in his
lap, and moved them toward the waistband of his pants. Majid
believed that he was trying to conceal something in his waistband.

After several orders, Taylor raised his hands to the window.
Majid then ordered him to open the car door and step out of the
car. After Taylor refused to do so, Majid opened the door and told
him to get out slowly. Taylor appeared nervous and again reached
for his waistband. Fearing for his safety, Majid told Taylor to
put his hands on the hood so Majid could handcuff him. Once out
of the car, Taylor refused to put his hands on the hood and began
to struggle with Majid. Taylor then struck Majid with his elbow,
and took off running. Majid ran after Taylor, yelling at him to
stop and “freeze.” Lopez stayed with the other three men at the
car and radioed for assistance, giving the dispatcher details of
the chase.

Majid caught up to Taylor and grabbed his shirt as they ran,
but Taylor broke free and the chase continued. As Taylor ran,

McNulty saw that he was holding a handgun tucked in his waistband.



-8-
L.Ed.2d 265 (1986). A court should grant a motion for summary
judgment only when the record shows that a reasonable jury could
not find for the nonmoving party. Valenti v. Qualex, Inc., 970
F.2d 363, 365 (7th Cir. 1992).
DISCUSSION

Plaintiff brings two claims against Majid - first, that
Majid’s shooting of Taylor constituted excessive force in violation
of his Fourth Amendment rights, and second, that the shooting
violated the Illinois Wrongful Death and Survival Acts.
Plaintiff’s two claims against the City, common law respondeat
superior and statutory indemnification, hinge entirely on our
resolution of the claims against Majid.
A. Excessive Force Claim

Plaintiff seeks damages under 42 U.S.C. § 1983 for an asserted
violation of Taylor’s Fourth Amendment rights. Specifically,
plaintiff alleges that Majid’s use of deadly force in taking Taylor
into custody violated the Fourth Amendment’s proscription against
unreasonable searches and seizures.?

Apprehension by the use of deadly force is a seizure subject
to the Fourth Amendment’s reasonableness requirement. Tennessee v.

Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Thus,

‘The Fourth Amendment provides: “the right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.

U.S. Const., Amend IV.

”



Minaie Order Form (66/97)

United States District Court, Northern District of IWinois

amie o! ign Sitting Judge i r
ni Magistrate Judge John F. Grady than Assigned Judge
CASE NUMBER 01 C 2057 DATE | September 29, 2003
CASE Minnie Taylor et al v. City of Chicago and Majid
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.)

MOTION:
DOCKET ENTRY:
ql) a Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) o Answer brief to motion due. . Reply to answer brief due .
(4) ir) Ruling/Hearing on set for at
(5) a Status hearing[held/continued to} [set for/re-set for) on set for at
(6) ia) Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) oO Trial{set for/re-set for] on at
(8) ia) (Bench/Jury trial] [Hearing] held/continued to at_
@) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
CFRCP4(m) General Rule 21 0 FRCP41(a)(1) © FRCP41(a)(2).
(10) =o [Other docket entry] Defendants’ motions for summary judgment (20-1, 21-1] are granted. ENTER
MEMORANDUM OPINION.
dy x [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court. Document
No notices required. Number
number of notices
X_ | Notices MAILED by judge’s staff. SEP Q
Notified counse! by telephone. 3 J 2003
Docketing to mail notices Zs
von 41... | BY
Copy to
a dae nuailed notice
courtroom
KAM deputy’s KAM
initials Datc/tinve received in
central Clerk's Office mailing deputy initials

(Reserved for use by the Court)


-ll-
to stand up, pulled a handgun from his waistband and, from
approximately three feet away, pointed it at Majid. As soon as
Taylor pointed his gun at him, Majid simultaneously knocked
Taylor’s gun from his hand and fired his own gun. Taylor did not
intend to shoot Majid, but was only trying to scare him.

On this record, the Court need not tarry long in concluding
that Majid’s use of force was justified under the Garner standard.
The uncontested facts establish that Majid shot Taylor because
Taylor pointed a gun at him from three feet away. Taylor’s
pointing his gun at Majid, an act reasonably perceived by Majid to

constitute an imminent threat to his life, warranted the use of

deadly force. ee Maravilla v. United States, 60 F.3d 1230 (7th
Cir. 1995) (affirming summary judgment in officer’s favor on

excessive force claim when officer was threatened with a deadly
weapon); Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994) (same);
Carter v. Buscher, 973 F.2d 1328 (7th Cir. 1992) (same). Under a
plain reading of Garner, Majid had “probable cause to believe that

[Taylor] pose[d] a threat of serious physical harm,” and under such
circumstances, “it is not constitutionally unreasonable to prevent
escape by using deadly force.” 471 U.S. at 11.

We also note that Taylor’s pointing his gun at Majid, while
perhaps the sole act justifying Majid’s use of deadly force, cannot

be viewed in a vacuum. From ignoring reasonable orders that he

both show his hands and get out of the car, to struggling with and


-10-
396. The Court explained:
The calculus of reasonableness must
embody allowance for the fact that
police officers are often forced to
make split-second judgments - in
circumstances that are tense, uncertain,
and rapidly evolving - about the amount
of force that is necessary ina
particular situation.
Id. at 396-97. With these principles in mind, we turn to the facts
before us.

Again, this case presents the Court with the unusual situation
in which defendants’ version of events constitutes the complete and
uncontested record before the Court. According to defendants,
Officers Lopez and Majid pulled over because people had congregated
around McNulty’s car in an area known for its substantial narcotics
activity. In fact, one of the men at the car’s side was
attempting to purchase drugs. After approaching the vehicle and
after repeatedly ordering Taylor to show his hands, Majid saw
Taylor place his hands at his waistband in what appeared to Majid
to be an attempt to hide something. Once Majid extracted Taylor
from the car, and after a brief struggle ending in Taylor striking
Majid with his elbow, Taylor ran off. Majid gave chase, all the
while yelling at Taylor to stop. Majid, who saw Taylor holding his
waistband, caught up with Taylor and grabbed his shirt, but Taylor
broke free. Moments later, Taylor tripped, allowing Majid to catch

up with him and both men stumbled to the ground. Majid rose first

and ordered Taylor to stay on the ground. Undeterred, Taylor began



-7-
only trying to scare Majid by pointing the gun at him, Taylor
nodded “yes.”

STANDARD OF REVIEW

Although plaintiff’s failure to provide any facts
contradicting defendants’ 56.1 statements does not require the
granting of summary judgment against her, it does necessitate a
departure from our usual procedure in that we “accept as true all
material facts contained in (defendants’ ] statement([s].”
Gudmundsson, 35 F.3d at 1108. Yet, significantly, while
plaintiff's admission by default “penalizes [her] by limiting the
scope of facts a court may take into account in determining whether
a genuine issue of material fact exists . . . [i]t does not . .
alter the manner in which a court evaluates those facts.” Smith v.
Severn, 129 F.3d 419, 426 (7th Cir. 1997) (alterations added). In
other words, although the record is confined to defendants’ 56.1
statements, and although we take the facts in defendants’
statements as true, we still must view those facts and all
reasonable inferences drawn therefrom in the light most favorable
to plaintiff. See id.

Our customary analysis is similarly unchanged. That is,
summary judgment is proper if the record shows that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91



~3-
numbered paragraph in the moving party’s statement, including, in
the case of any disagreement, specific references to the
affidavits, parts of the record, and other supporting materials
relied upon.” Rule 56.1(b) (3) (B) also requires the non-movant to
file a separate statement of any additional facts that require
denial of summary judgment. Under Rule 56.1(b) (3) (B), “fa}ll
material 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.” Thus, the effect of plaintiff’s
failure to respond is significant - she is deemed to have admitted
each of the factual statements in defendants’ Rule 56.1 (a) (3)

statements. See Rule 56.1(b) (3) (B); Johnson v. Gudmundsson, 35

F.3d 1104, 1108 (7th Cir. 1994).
B. Uncontested Facts

Because plaintiff did not file either a Rule 56.1 (b) (3) (A)
response or a Rule 56.1(b) (3) (B) statement of additional facts, the
following uncontested facts are derived solely from defendants’
statements of uncontested facts and attached exhibits.

This case arises out of Majid’s fatal shooting of Taylor, a
twenty-year old man, on the evening of May 12, 2000. That day,
Majid and his partner, Officer Conception Lopez, were on duty, in
uniform and driving their marked squad car. Meanwhile, at
approximately 2:00 p.m., Taylor was socializing at a friend’s

apartment located at 737 S. Independence on Chicago’s West Side.



-14-
for summary judgment on Count V.
B. Wrongful Death and Survival Claims

Pursuant to Illinois’ Wrongful Death Act, plaintiff must show
that Taylor’s death was “caused by wrongful act, neglect or
default. . . .” 740 ILCS § 180/1. Under Illinois law, the
standard for authorized deadly force by a police officer is in line
with the standard articulated in Garner:

A peace officer... is justified

in the use of any force which he

reasonably believes to be necessary to

effect the arrest and of any force which

he reasonably believes to be necessary to

defend himself or another from bodily harm

while making the arrest. However, he is

justified in using force likely to cause

death or great bodily harm only when

he reasonably believes that such force is

necessary to prevent death or great bodily

harm to himself or such other person.
720 ILCS § 5/7-5 (emphasis added). Under this standard, as under
Garner, Majid’s use of deadly force was justified and thus,
plaintiff’s wrongful death and corresponding survival claims must
fail.

In addition, Illinois’ Tort Immunity Act protects local
government employees from liability for acts committed in the
execution or enforcement of any law unless that act was willful or
wanton. ee 745 ILCS § 10/2-202. The Act defines willful and
wanton conduct as “a course of action which shows an actual or

deliberate intention to cause harm or which, if not intentional,

shows an utter indifference to or conscious disregard for the



-16-
judgment are granted in their entirety. Judgment is hereby entered

in defendants’ favor.

DATE: September 29, 2003

ENTER: A
St

John F. Grady, United States District Judg



-2-
Death Act, 740 ILCS § 180/2, against Majid (Count I); a
corresponding survival claim under the Illinois Survival Act, 755
ILCS § 5/27-6, against Majid (Count II); a common law respondeat
superior claim against the City (Count III); an indemnification
claim pursuant to 745 ILCS 10/9-102 against the City (Count IV); a
42 U.S.C. § 1983 claim against Majid for violation of Taylor’s
Fourth Amendment right to be free from excessive force (Count V);
and a 42 U.S.C. § 1983 Monell claim against the City (Count VI).
Plaintiff has since voluntarily dismissed the Monell claim.

On December 2, 2002, the City and Majid filed separate motions
for summary judgment complete with Local Rule 56.1 statements of
material uncontested facts. By order of October 9, 2002,
plaintiff's response to the motions was due on December 31, 2002.
Over two months later, on February 7, 2003, plaintiff requested and
received an extension until March 19, 2003 to respond to the
summary judgment motions. To date, plaintiff still has not filed
anything by way of response.

Local Rule 56.1 requires parties to comply with detailed
procedures in filing and responding to summary judgment motions.
Local Rule 56.1(a) (3) requires the moving party to supplement its
motion papers and memorandum of law with a statement of undisputed
material facts entitling it to judgment as a matter of law. Rule
56.1(b) (3) (A) requires a party opposing summary judgment to

provide, in addition to its memorandum of law, “a response to each



01~-2057.031-TCM September 29, 2003

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETED
EASTERN DIVISION
SEP 3 0 2003

MINNIE TAYLOR, INDIVIDUALLY and
as SPECIAL ADMINISTRATOR OF THE
ESTATE OF MICHARL TAYLOR,
deceased,

Plaintiff,
No. 01 C 2057
v.

CITY OF CHICAGO and CITY OF
CHICAGO POLICE OFFICER NAIL MAJID,

Defendants.

MEMORANDUM OPINION

Before the court are defendant City of Chicago’s (the “City”)
and defendant Chicago Police Officer Nail Majid’s (“Majid”)
(collectively, ‘“defendants”) respective motions for summary
judgment on the claims of Minnie Taylor (“plaintiff”),
administratrix of the estate of Michael Taylor (“Taylor”). For the
reasons set forth below, defendants’ motions are granted.

BACKGROUND

A. Procedural History

Before discussing the facts, the atypical posture of this case
requires that we first set up the procedural history. On March 23
2001, defendants properly removed this case to this Court pursuant
to 28 U.S.C. $§ 1441(b) and (c). Plaintiff's complaint alleges the

following: a wrongful death claim pursuant to the Illinois Wrongful

bd


-12-
striking Majid, to fleeing with one hand suspiciously holding his
waistband, Taylor threatened Majid through a succession of rapidly
escalating hostile actions, of which Taylor’s final and most grave
act was just the culmination.

Proffered as part of defendants’ 56.1 statements, we take as
true that Taylor had no intent to shoot Majid. But this does not
affect our conclusion that Majid’s use of deadly force was
objectively reasonable. Taylor's after-the-fact statement of a
lack of fatal intent is relevant to our analysis only insofar as
Majid was aware of that fact at the time he fired his weapon. As
the Seventh Circuit has stated in a similar context:

(Nlo right is guaranteed by federal
law that one will be free from

circumstances where he will be endangered
by the misinterpretation of his acts. .

* * *

It is not necessary that the danger which
gave rise to the belief actually existed;
it is sufficient that the person resorting
to self defense at the time involved
reasonably believed in the existence of
such a danger, and such reasonable belief is
sufficient even where it is mistaken. In
forming such reasonable belief a person
may act upon appearances. In other words,
it is sufficient that the danger was
reasonably apparent.

Sherrod v. Berry, 856 F.2d 802, 805-06 (7th Cir. 1988) (citations
omitted). Here, we find no fact from which to draw even the
slightest inference that Majid had any inkling of Taylor’s

undisclosed state of mind. “[Jd]udged from the perspective of a


-15-
safety of others or their property.” Id. § 10/1-210. Because the
record is devoid of any evidence to support an allegation that
Majid acted willfully or wantonly, Majid is insulated from
liability by the Act. Thus, summary judgment is granted on Counts
I and II.
c. Respondeat Superior and Indemnification Claims

Lastly, we address plaintiff’s derivative claims set forth in
Counts III and IV. First, plaintiff alleges a common law
respondeat superior claim against the City for Majid’s conduct
alleged in Counts I, II and V. Second, plaintiff avers a 745 ILCS
§ 10/9-102 claim against the City for indemnification of any
judgment rendered against Majid. These two claims are entirely
dependent on the success of plaintiff’s primary claims against

Majid. See Gordon v. Degelmann, 29 F.3d 295, 298 (7 Cir. 1994)

(“You can’t have vicarious liability without primary liability.”);
745 ILCS § 10/2-109 (“A local public entity is not liable for an
injury resulting from an act or omission of its employee where the
employee is not liable.”). Having found that plaintiff’s claims
against Majid cannot withstand summary judgment, we must also grant
summary judgment on plaintiff’s claims against the City for
respondeat superior liability and indemnification. Accordingly,
summary judgment is granted on Counts III and IV.
CONCLUSION

For the foregoing reasons, defendants’ motions for summary
g g