there is no evidence of a proper RICO enterprise. Plaintiff asserts that the enterprise is the
Chicago Police Department (“CPD”). Second Amended Complaint, 38. In order for a person to
be liable under RICO, a person must be either an operator or manager of the enterprise. Reeves
y. Emst & Young, 507 U.S. 170, 179 (1993). Reeves has been extended to apply to persons who
knowingly perform services which facilitate the illegal operation by those in charge of the

enterprise. Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7" Cir. 2000). Here,

there is no evidence that the Officers operated or managed CPD, or that they facilitated the
activities of anyone operating CPD in an illegal manner. The Officers here are merely street
officers, with no part in directing the affairs of CPD, nor are their supposed RICO activities
facilitating others in illegally directing the affairs of CPD. Thus, CPD is not a proper RICO
entity, another reason that the Officers are entitled to summary judgment on the RICO claim.
Finally, plaintiff has failed to allege a sufficient pattern of racketeering activity. “[A] civil
RICO plaintiff may no longer get by merely alleging two predicate acts, but must also satisfy the
so-called ‘continuity plus relationship’ test: the predicate acts must be related to one another (the
relationship prong) and pose a threat of continued criminal activity (the continuity prong).”
Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1022 (7" Cir. 1992)(emphasis in original).

As Judge Moran stated in Dudley Enterprises, Inc. v. Palmer Corporation, 822 F.Supp. 496, 503

(N.D. 1993):
The Supreme Court and the Seventh Circuit, however, have been careful to recognize the
purpose of RICO — to “reach activities that amount to or threaten long-term criminal activity”
~ when evaluating the continuity requirement and therefore have generally not applied RICO
when the threat is an individual one, rather than a significant threat to society.

Judge Moran analyzed the continuity requirement in terms of the number and variety of acts and

12



because neither the May 1.2, 1997 charges nor the VOP were terminated in plaintiff's favor.
1, The May 12, 1997 Charges Were Not Resolved In Plaintiff's Favor.

The May 12, 1997 charges were terminated by the granting of the prosecutor’s motion to
nolle prosequi the charges against the plaintiff. Undisputed Fact No. 58. A prosecutor’s motion
to nolle prosequi criminal charges is not resolved in favor of the plaintiff unless the nolle
prosequi is entered for reasons indicative of the innocence of the accused. Swick v. Liautaud,
169 Ill.2d 504, 513-14, 662 N.E.2d 1238, 1242-43 (Il. 1996) (holding that a court should look at
the reasons for the nolle prosequi, and plaintiff bears the burden of proving that the reasons are
consistent with his innocence). A nolle prosequi entered is not indicative of innocence when it
“4s the result of an agreement or compromise with the accused...” Id. See also Logan v.
Caterpillar Inc., 246 F.3d 912, 925 (7th Cir. 2001)(affirming summary judgment in favor of the
defendants on a malicious prosecution claim where the prosecutor agreed not to prosecute the
plaintiff on one charge in return for an agreement on another charge); Washington v.
Summerville, 127 F.3d 552 (7 Cir. 1997)(affirming summary judgment in favor of police
officers on a state law malicious prosecution claim, because the plaintiff had not met his burden
of showing that the nolle prosequi was entered for reasons consistent with innocence); Phillips v.
Brezek, 2002 WL 596367 *7 (N.D. Ill. 2002) (‘the nolle prosequi order not stating its reasons for
its entry coupled with Plaintiffs’ lack of evidence for the reason of the entry, do not establish that
the criminal proceedings were terminated in a manner consistent with ... innocence.”).

Here, plaintiff cannot meet his burden of showing that the nolle prosequi was entered for
reasons indicative of innocence. The Officers have submitted undisputed evidence establishing

just the opposite. The nolle prosequi of the May 12, 1997 charges was entered pursuant to a plea


the death of plaintiffs cousin. The Motion To Suppress was based upon the same incidents
alleged in this case to be a pattern of racketeering under Count I, a pattern of intimidation and
retaliation for exercising First Amendment rights under Count II and outrageous conduct under
Count V. Compare Undisputed Fact Nos. 41-52 with Nos. 11, 12, 15-30, All plaintiff does here
is convert his Motion To Suppress into a federal complaint, cloaking it with the language of
RICO, First Amendment and DED. Asserting the came issves as a different cause of action does
not preclude application of collateral estoppel; it is the essence of collateral estoppel.

Plaintiff has fully litigated in the state court the issue of whether the alleged stops, threats
and arrests constitute police harassment, intimidation and retaliation against plaintiff for being a
witness against two Officers. The doctrine of collateral estoppel bars relitigation, entitling the
Officers to summary judgment on Counts I, II and V. See Walls v. Bradley, et al., 2001 WL
855874 *1-2 (N.D. Ill. July 24, 2001)(Hibbler, J.)(the court, granting summary judgment in favor
of the officer defendants, stated “the court in Plaintiff's criminal case heard testimony concerning
the exact same set of facts and events alleged in this civil complaint and concluded Defendants
had not used excessive force against Plaintiff to obtain his statements...Defendants argue Plaintiff
is precluded by collateral estoppel from raising this issue again. The Court agrees.”).

C. The Officers Are Entitled To Summary Judgment On The RICO Claim
Because Plaintiff Has Not Suffered A Business Injury To Confer RICO Standing.

This Court's Septernber 4, 2001 Opinion limited plaintiff's “business injury” for standing
under RICO to lost income while in jail and attorneys’ fees. Plaintiff cannot prove any loss of
income whatsoever, and certainly suffered no loss of income, nor incurred attorneys fees, due to

any RICO conduct. Thus, plaintiff lacks standing to assert a RICO claim, another reason the



B. The Officers Are Entitled To Summary Judgment On Plaintiff’s RICO Claim, First
Amendment Claim and [TED Claim Under The Principles of Collateral Estoppel

Plaintiff is collaterally estopped from litigating his RICO, Section 1983 and ITED claims
here, because he already litigated those issues in the state criminal court case. “The federal
courts generally have... consistently accorded preclusive effect to issues decided by state courts.”
Allen v. McCurry 449 U.S. 90, 95 (1980). The purpose of according a state court decision
preclusive effect under the doctrines of res judicata and collateral estoppel is to reduce
unnecessary litigation, foster reliance on adjudication and “promote the comity between state and
federal courts that has been recognized as a bulwark of the federal system.” Id. Thus, collateral
estoppel applies to subsequent claims brought in federal court under the RICO Act. County of
Cook v. Midcon Corporation, 773 F.2d 892 (7" Cir. 1985). Collateral estoppel applies to Section
1983 claims as well. Henry v. Farmer City State Bank, 808 F.2d 1228 (7" Cir. 1986); Williams
v. Valtierra, 2001 WL 1263 (N.D. Ill. 2001)(Kennelley, J.).> Collateral estoppel also bars
subsequent state law claims, whether civil or criminal. People v. Williams, 59 Itl.2d 557, 560,
322 N.E.2d 461, 462-63 (1975).

In determining the preclusive effect of a state court proceeding, federal courts apply the
collateral estoppel law of the state where the prior adjudication occurred. Thompson y. Mueller,
976 F.Supp. 762, 765 (N.D. Ill. 1997). Where the Illinois courts would preclude the parties from

re-litigating an issue, the parties will be collaterally estopped in this court as well. Id. Illinois

5Collateral estoppel has been specifically applied to bar Section 1983 claims asserting
First Amendment violations. See Button v. Harden, 814 F.2d 382 (7" Cir. 1987), holding that a
teacher’s Section 1983 action that he was fired in retaliation for exercising his right of free
speech was barred by prior judgment in a state administrative review proceeding, in which
plaintiff could have raised his First Amendment ground.

5



agreement without regard to innocence.’ Undisputed Fact Nos. 57, 58. Innocence had nothing to
do with the nolle prosequi entered on the May 12 charges. Because the undisputed facts
establish that the nolle prosequi of the May 12, 1997 criminal charges was not due to plaintiff's
innocence, the Officers are entitled to summary judgment in their favor on plaintiff's state law

malicious prosecution claim regarding these charges. Cf. David v. Village of Oak Lawn, 954

F.Supp. 1241, 1244 (N.D. Ill. 1996)(Gettleman, J.)(summary judgment granted on a malicious
prosecution claim where the criminal case was stricken with leave to reinstate, which “is not a

legal termination of the proceedings in a manner indicative of the plaintiff's innocence.”).

2. The VOP Charges Were Not Resolved In Plaintiff's Favor.

The VOP charges arose out of the probation sentence entered in plaintiff's 1996
conviction. Undisputed Fact Nos. 13,27. The VOP charges were resolved against plaintiff by an
order of “PTU” (“Probation Terminated Unsatisfactory)” and plaintiff served the maximum
remaining time on his 1996 conviction. Undisputed Fact No. 55. Therefore, the VOP charge
was terminated in a manner indicative of guilt, not innocence.*

Because the undisputed facts show that neither the May 12, 1997 charges nor the VOP
charges were dismissed due to plaintiff's innocence, the Officers are entitled to judgment as a

matter of law in their favor on the state law malicious prosecution claim alleged under Count IV.

3The prosecutor had no any indication of plaintiff's innocence on the May 12 charges.
This same prosecutor had obtained a conviction of plaintiff's May 12 co-arrestee based upon two
of the Officers’ testimony (Coyle and McCarthy); the criminal court judge, in finding the
plaintiff’s co-arrestee guilty, specifically stated that she found the Officers’ testimony credible.
Undisputed Fact No. 59. If plaintiff had gone to trial, this prosecutor would have offered the
same testimony to the same judge.

*The VOP could not have been resolved in favor of plaintiff because he committed the
June 8 and July 14 crimes while on probation. See Undisputed Fact No. 8 and Exhibit Al.

4



the issues raised by the motion to suppress, even though such testimony and discovery was far
beyond the charges before the criminal court. Undisputed Fact Nos. 41, 51. Plaintiff was
unfettered by the criminal court in actually litigating the issues raised by the motion to suppress.
The resolution of the issues was necessary to the court’s judgment. The Motion To
Suppress raised the issues of harassment, intimidation and retaliation for plaintiff being a witness
against the Officers in connection with Ms. Perkins’ death. In denying the Motion To Suppress
(Undisputed Fact No. 52), the criminal court necessarily rejected the claims of a pattern of
harassment, intimidation or retaliation for being a witness against the Officers. A court’s ruling
on a motion to suppress may operate as a collateral estoppel on any basis appearing in the record,

regardless of reasoning advanced or omitted by the criminal court. People v. Wiedman, 168 Ill.

App.3d 199, 209, 522 N.E.2d 231, 238 (Ill. App. 1“ Dist. 1988). Accord, People v. Page, 614
N.E.2d 1160, 1168 (Ill. 1993) ( “It is enough for application of the doctrine if the record from the
earlier proceeding discloses that the issue was actually litigated and determined”). See also
Williams v. Valtierra, 2001 WL 1263495 (N.D. Ill. October 22, 2001)(Kennelley, J.)(the court,
granting summary judgment for prosecutors on the grounds of collateral estoppel, stated that
“[t]hough the state court judge denied [plaintiff]’s motion to suppress without a written or oral
opinion articulating his reasons for the decision...the court could not have denied the motion
without finding that the ASAs had not coerced [plaintiff]’s confession.”).

Finally, the issues actually litigated and decided in the Motion To Suppress are the same
as those raised here by the RICO, First Amendment and IED claims. The motion (and hearing)
raised a pattern of police harassment, claiming that the Officers were harassing, intimidating and

retaliating against plaintiff for being a witness against McCarthy and Hofer in connection with



IN THE UNITED STATES DISTRICT COURT Ju, Noy
FOR THE NORTHERN DISTRICT OF ILLINOIS 4 ee R 0p:
Meg ben 2

EASTERN DIVISION to
s Qi, 8tten,
RONNIE EVANS, ) Count
)
Plaintiff, )
) No. 00 C 7222
v. )
) Judge Gettleman DOCKETED
CITY OF CHICAGO, et. al. ) N
) OV 1 4 202
Defendants. )
NOTICE OF FILING
To: Daniel S. Alexander Allen Duarte
33 N. LaSalle Street, Suite 3300 30 N. LaSalle, Suite 900
Chicago, Illinois 60602 Chicago, Illinois 60602

PLEASE TAKE NOTICE that today we have filed with the Clerk of the above Court:
(1) THE OFFICERS’ LOCAL RULE 56.1 STATEMENT OF FACTS IN SUPPORT OF
THEIR MOTION FOR SUMMARY JUDGMENT; (2) ADDENDUM OF CRIMINAL
COURT TRANSCRIPTS TO THE OFFICERS’ LOCAL RULE 56.1 STATEMENT OF
FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT; and (3) THE
OFFICERS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR
SUMMARY JUDGMENT, a copy of which is enclosed and is hereby served upon you.

Dated: November 12, 2002. ' AI
Sheri H. Mecklenburg }

Assistant Corporation Counsel

30 N. LaSalle Street
Suite 1400
Chicago, IL 60602
(312) 744-6905

4



Humphrey, 512 U.S. 477, 486-88 (1994). See Hermansen y. Chandler, 211 F.3d 1269 (6" Cir.
2000)(where the plaintiff alleged that the persons involved in his criminal investigation, trial and
conviction had committed RICO violations which resulted in the loss of his business and
business income, the court held that the RICO claim necessarily impugned plaintiff's conviction
and therefore he could not maintain the action). Accordingly, plaintiff has no standing to assert a
RICO claim based upon a loss of income due to his jail sentence.

2. Plaintiff Incurred No Attorneys’ Fees Attributable To Any RICO Conduct.

Plaintiff also did not incur any attorneys’ fees due to any alleged RICO conduct of the

Officers.’ Plaintiff admits that he incurred no attorneys’ fees as a result of any of the stops,
searches or verbal harassment. Undisputed Fact No. 61. Plaintiff admits that he incurred
attorneys’ fees only as a result of the criminal charges pending against him, and only with respect
to attorneys Alexander and Brandstrader, having been represented by public defenders prior to
that time. Undisputed Fact No. 61. Like the loss of income, any attorneys’ fees arising out of the
June 8, July 14 or the VOP charges cannot establish standing for RICO, because that would
constitute an impermissible attack on valid convictions. Therefore, the only issue is whether any
attorneys’ fees incurred were exclusive of the three charges resolved against plaintiff.

Both Mr. Alexander and Mr. Brandstrader charged plaintiff a set fee applicable to all
criminal charges, without any division based upon the charges or the work done. Undisputed
Fact Nos. 62, 63. Neither Mr. Alexander nor Mr. Brandstrader performed any legal work

exclusive of the three charges resolved against plaintiff. Mr. Alexander litigated only the VOP

*Plaintiff himself has never paid any attomeys’ fees, and thus his RICO standing is
premised upon alleged debt. Undisputed Fact Nos. 62, 64, 65. This discussion, therefore, is
framed in terms of whether plaintiff even incurred any attorneys’ fees due to the RICO conduct.

10



Officers are entitled to summary judgment under Count I. See Mira v. Nuclear Measurements
Corp.,107 F.3d 466 (7" Cir 1997) (in the absence of an economic loss, plaintiff lacked standing
under RICO, and therefore summary judgment in favor of the defendants was proper); County of
Cook v. Midcon Corp., 57'4 F.Supp. 902, 919 (N.D.II. 1983)(where the plaintiffs in a RICO
claim asserted economic loss caused by acts already determined by a prior court to be valid, the
plaintiffs lacked standing under RICO because they could not establish any economic loss caused
by wrongful conduct of the defendants).

1. Plaintiff Suffered No Loss of Income Due To Any RICO Conduct.

Plaintiff could not have suffered any loss of income due to the alleged RICO conduct of
the Officers in 1997, because plaintiff had no source of income during that time. Undisputed
Fact No. 9. Plaintiff concedes that he had no actual loss of income; instead, he claims only lost
opportunity for income based upon his alleged earnings since his release from jail. Undisputed
Fact No. 9.° Plaintiff cannot prove any actual loss of income needed to confer RICO standing.

In addition, plaintiff cannot claim any loss of income due to his jail time, because plaintiff
served his jail time pursuant to his sentences on valid convictions. All jail time served by
plaintiff prior to his release on March 17, 2000 was credited against his four-year sentence on the
conviction for the June 8, 1997 charges. Undisputed Fact No. 58.” Because plaintiff served his
jail time as a result of sentencing on his criminal convictions, his assertion of standing under

RICO based upon the jail time served impermissibly attacks those convictions. Heck v.

‘This Court has held, in its September 4, 2001 and November 28, 2001 opinions, that the
RICO standing cannot be conferred by a “lost opportunity” claim.

7Plaintiff concurrently served his time until January 14, 2000 on his 1996 conviction.
Undisputed Fact No. 55.



law collateral estoppel precludes a party from re-litigating an issue in a later proceeding when:
(1) the party against whom the estoppel is asserted was a party to
the prior adjudication, (2) the issues which form the basis of the
estoppel were actually litigated and decided on the merits in the
prior suit, (3) the resolution of the particular issues was necessary

to the court’s judgments, and (4) those issues are identical to the
issues raised in the subsequent suit.

County of Cook v. Midcon Com., 773 F.2d 892, 898 (7" Cir. 1985).

This case clearly satisfies the requirements for applying collateral estoppel as a bar.
Plaintiff was the criminal defendant in the prior case and brought the Motion to Suppress.
Undisputed Fact No. 43. In Illinois, a ruling on a motion to suppress constitutes a prior
adjudication on the merits for purposes of collateral estoppel. Ramey v. Smith, 1991 WL 42166
(NLD. Ill. 1991)(Kocoras, J.). Indeed, the Northem District of Illinois has granted summary
judgment to law enforcement defendants in civil cases based upon the preclusive effect of the
plaintiff's loss of a motion to suppress in Illinois criminal courts. See, ¢.g., Walls v. Bradley, et
al., 2001 WL 855874, (N.D. Ill. July 24, 2001)(Hibbler, J.); Williams v. Valtierra, 2001 WL
1263495 (N.D. Ill. October 22, 2001)(Kennelley, J.); Johnson v. Comelson, 1993 WL 87735
(N.D. Ill. 1993)(Lindberg, J.); Ramey v. Smith, 1991 WL 42166 (N.D. Ill. 1991)(Kocoras, J.). It
is irrelevant that the standards of proof operating in the earlier and later suits differ. Id.

Guenther v. Hol en, 738 F.2d 879, 888 (7" Cir. 1984), cert. denied, 105 S.Ct. 1182.

In addition, the issues which form the basis of the estoppel were actually litigated and
decided in connection with the Motion To Suppress. The record shows that the plaintiff
presented both oral argument and live testimony of numerous witnesses over a significant period

of time. Undisputed Fact Nos. 41-52. The court allowed in testimony and discovery based upon



attomeys’ fees; (2) Count I, for violation of First Amendment rights; (3) Count IV, a state law
claim for malicious prosecution arising out of the May 12, 1997 s and the VOP charge; and (4)
Count V, a state law clairn for intentional infliction of emotional distress (“MED”).!
Il. STATEMENT OF FACTS
For purposes of this motion, the Officers adopt The Officers’ LR. 56.1 Statement of
Undisputed Material Facts (“Undisputed Facts”), filed in conjunction with this brief.

Il. STATEMENT OF LAW

A. The Officers Are Entitled To Summary Judgment on the State Law Claim For
Malicious Prosecution Because The Charges Were Not Resolved in Plaintiff’s Favor.

Under Count IV, plaintiff asserts a state law claim for malicious prosecution based upon
the May 12, 1997 charges and the Violation of Probation (“VOP”) charges.? Under Ilinois law,
aclaim for malicious prosecution must establish that: (1) the defendant brought the underlying
suit maliciously and without probable cause; 2) the action terminated in a manner favorable to
plaintiff; and (3) the plaintiff suffered some special injury beyond the usual expense, time or
annoyance in defending the lawsuit. Cult Awareness Network v. Church of Scientology
International, 177 Ill. 2d 267, 274, 685 N.E.2d 1347, 1352 (Ill. 1997), cert. denied 523 U.S. 1020

(1997). The Officers are entitled to summary judgment on the malicious prosecution claim

'Count III is directed solely against the City, for a policy of violating First Amendment
rights. If the Officers are entitled to judgment as a matter of law on the allegations of the
underlying First Amendment violations, then the City would be entitled to judgment under Count
Ill. Los Angeles v. Heller, 475 U.S. 796 (1986). :

2pjaintiff’s convictions on both the June 8, 1997 and the July 14, 1997 charges, preclude a
claim for malicious prosecution based upon those charges. See Heck v. Humphrey, 512 U.S.
477, 486-88 (1994). See also September 4, 2001 Opinion of this Court, p. 21, dismissing all
claims for malicious prosecution except state law claims based upon the May 12, 1997 charges
and the Violation of Probation charges (“VOP”).

2



length of time over which they were committed; the number of victims; the number of separate
schemes; and the occurrence of distinct injuries, and concluded that “(while their allegations
would probably provide sufficient bases for common law claims...they are not the type of
allegations at which the RICO statute was aimed, at least so long as the focus of the case is the
relationship between plaintiffs and defendants.” Id. at 504. Here, too, the evidence does not
satisfy the “continuity” requirement. The Officers, therefore, are entitled to summary judgment
on the RICO claim.
E. The Officers Are Entitled To Summary Judgment On The First Amendment Claim

Count I is a Section 1983 claim for violation of plaintiff's First Amendment Rights of
free speech. The Officers are entitled to summary judgment on this claim because it is barred by
the statute of limitations; the speech at issue is a matter of private, not public concern; and
plaintiff has not suffered a First Amendment injury required for the Section 1983 claim.

1. The Statute of Limitations On The First Amendment Claim Has Expired.

Plaintiff's claim, brought under Section 1983, must be brought within two years from the

date of the incident. Kalimara v. Illinois Department of Corrections, 879 F.2d 276, 277 (7° Cir.

1989). The incidents here all occurred in 1997. Plaintiff has had no contact with any of the
Officers since 1997. Undisputed Fact Nos. 31-36. The statute of limitations for Count II thus
expired in 1999, The claim was first filed on September 21, 2001. The Officers are entitled to

summary judgment on Count II because it is barred by the statute of limitations.®

° Although plaintiff has had no contact with any of the Officers since 1997, plaintiff
testified that he has heard from third parties in 2001 that the “fat” officer had been asking about,
and making verbal threats about, plaintiff. This conduct, even if proven, does not extend the
statute of limitations for the First Amendment claim because the verbal threats of one Officer
four years later are not part of a “continuing course of conduct.” See Selan v. Kiley, 969 F.2d 560

13



having societal ramifications.” Vukadinovich, supra, 853 F.2d at 1391.

3. Plaintiff Has Suffered No Injury Sufficient To Confer Standing Under Section 1983

In order to bring a Section 1983 claim, the plaintiff must have been deprived of some

legally cognizable interest. Linhart v. Glatfelter, 771 F.2d 1004, 1008 (1985). Accord, Bart v.

Telford, 677 F.2d 622, 625 (7" Cir. 1982) (“Section 1983 is a tort statute. A tort to be actionable
requires injury.”). Cf. Laird v. Tatum, 408 U.S. 1, 14 n.7 (1972). Here, plaintiff admits that at
no time was he ever chilled. Undisputed Fact Nos. 66-69. In the absence of a First Amendment
injury suffered by plaintiff, the Officers are entitled to summary judgment on Count II.

F. Count V Is Barred By The Statute Of Limitations.

Count V is a state law claim for Intentional Infliction of Emotional Distress. State law
claims against the police officers must be brought within one year from the date the cause of
action accrued. See Illinois Local Governmental and Governmental Employees Tort Immunity
Act, 745 ILCS 10/8-101 (1994). For the same reasons that the two-year statute of limitations
bars Count II (See Section E(1), supra), the one-year statute of limitations bars Count V.

WHEREFORE, the Officers respectfully request that this Court grant judgment in their
favor on Count I (RICO), Count II (Section 1983 First Amendment claim), Count IV (state law
claim for malicious prosecution) and Count V ( intentional infliction of emotional distress).

Respectfully submitted,

SWMechlowl rm

Sheri H. Mecklenburg
Assistant Corporation Counsel

30 N. LaSalle Street, Suite 1400
Chicago, Illinois 60602
(312) 744-6905

15


FILED

IN THE UNITED STATES DISTRICT COURT NOV 12 2002
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION Judge Roper;

t 7
United States 47.,Cettlemary

es District Cours
RONNIE EVANS,

Plaintiff,

Case No. 00 C 7222 DOCKETED
NOV 1 4 2099
Judge Robert W. Gettleman

Vv.

)

)

)

)

}

CITY OF CHICAGO, et. al. )
)

)

Defendants. )

THE OFFICERS’ MEMORANDUM OF LAW
IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

The Individual Officers (“the Officers”), by their attommeys, hereby submit the following
Memorandum of Law In Support of their Motion For Summary Judgment:

I. STATEMENT OF THE CLAIMS

Plaintiff filed this action on November 16, 2000, against eight Chicago Police Officers
and the City of Chicago, alleging a RICO claim, federal and state malicious prosecution claims
and a state law claim for intentional infliction of emotional distress. On September 4, 2001, this
Court dismissed all personal injury claims asserted under RICO, including damage to reputation,
lost opportunity and future earning capacity, limiting the RICO claim to “business injury” of lost
wages while incarcerated and attorneys’ fees; this Court dismissed all claims for malicious
prosecution except a state law claim based on the May 12, 1997 and Violation of Probation
charges. On September 21, 2001, plaintiff filed an amended complaint, alleging, for the first
time, a First Amendment claim. On November 28, 2001, this Court dismissed certain claims,

leaving four claims against the Officers: (1) Count I, a RICO claim for actual lost wages and

10



CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that she served a copy of the foregoing (1)
THE OFFICERS’ LOCAL RULE 56.1 STATEMENT OF FACTS IN SUPPORT OF
THEIR MOTION FOR SUMMARY JUDGMENT; (2) ADDENDUM OF CRIMINAL
COURT TRANSCRIPTS TO THE OFFICERS’ LOCAL RULE 56.1 STATEMENT OF
FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT; and (3) THE
OFFICERS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR
SUMMARY JUDGMENT, to the persons named at the address shown in the foregoing
NOTICE OF FILING, by hand delivery, before the hour of 5:00 p.m. on November 12, 2002.

Sheri H. Mecklenburg


charges and the July 14 arrest. Undisputed Fact No. 62. Mr. Brandstrader did no work exclusive
of the three charges. Undisputed Fact No. 63.
Plain and simple, plaintiff cannot prove that he incurred any attorneys fees exclusive of

the June 8, 1997, July 14, 1997 or VOP charges, all resolved against plaintiff. Since the fees
“cannot be separated from fees incurred on plaintiff's valid convictions, the fees cannot confer
standing for RICO. In the absence of any loss of income or attorneys fees incurred due to the
alleged RICO violations, plaintiff lacks standing to assert a RICO claim, and the Officers are
entitled to summary judgment as a matter of law on Count I.

D. The Officers Are Entitled To Summary Judgment On The RICO Claim Because
The Evidence Shows That The Elements Of RICO Are Not Present,

In order to prevail on a RICO claim, plaintiff must prove that each individual defendant
personally committed at least two predicate acts. Dudley Enterprises, Inc. v. Palmer Corp., 822
F.Supp. 496, 502 (N.D. Ill. 1993). Plaintiff lacks evidence that Officers Hofer, Hladik, Green
and Smith each committed at least two predicate acts. Because the June 8 arrest cannot be a
RICO predicate act, that leaves evidence of only one act by Officer Hladik: verbally harassing
plaintiff on the loudspeaker of his car as he drove past plaintiff's house. Undisputed Fact No. 24.
Because the July 14 arrest cannot be a RICO predicate act, there is no evidence of any predicate
act by Officers Green and Smith, Undisputed Fact No. 29. Because Officer Hofer’s arrest of
plaintiff pursuant to a valid warrant cannot be a RICO predicate act, there is only one act by
Officer Hofer: asking plaintiff about Frankie Ann Perkins’ family. Undisputed Fact No. 21.
Officers Hladik, Green, Smith and Hofer are entitled to summary judgment on the RICO claim.

In addition, the Officers are entitled to summary judgment on the RICO claim because

11



2. The Plaintiff's Speech Is Not Constitutionally Protected.

In order to prove a violation of his First Amendment Rights, plaintiff must prove, among

other things, that his speech is constitutionally protected. Kokkinis v. Ivkovich, 185 F.3d 840,

843 (7" Cir. 1999). For speech to be constitutionally protected, it must be a matter of public, not
private, concern. Id. It is appropriate on summary judgment to determine if speech is a matter of
private, rather than public, concern. Id. at 1388 n.4.

The fact that statements are made in the course of a news program does not alone render

the statements constitutionally protected. Kokkinis v. Ivkovich, 185 F.3d 840, 844 (7" Cir.

1999). Nor is all speech relating to government a matter of public concem. Vukadinovich v.
Bartels, 853 F.2d 1387, 1390 (7" Cir. 1988). Speech may address a matter of public concern, but
the test is whether the speech was made to raise issues of public concern because they are of
public concern, or to further some purely private interest. Id. “[T]here is a difference between
criticism directed at the institution in general and disputes with which the complainant has an
intimate personal involvement.” Egger v. Phillips, 710 F.2d 292, 318 (7" Cir. 1983) (en banc).
Here, plaintiff's statements were not about the police department in general, or about
police misconduct in general. Plaintiff's statements all addressed how the specific Officers were
treating his cousin and him. Undisputed Fact Nos. 11, 12, 66, 67. His statements to OPS
regarding his own arrests or stops are related only to a private dispute. So, too, are plaintiffs his
statements that specific Officers choked his cousin a matter of private concem arising out of a

private dispute. “It is important not to equate the public’s curiosity abut a matter with the matter

(7* Cir. 1992)(the court, affirming summary judgment on the statute of limitations, held that the
passage of more than two years between incidents “weighs heavily against finding a continuing
violation,” even though the acts were of a similar nature).

14