Chicago police units to the altercation between Goldsmith and another individual in the early
morning hours of August 4, 2002. (Def.’s 56.1(a)(3) Statement ] 28).
On August 3-4, 2002, Kane, a Chicago police officer, also attended the block party in the 7300 block
of North Octavia as the guest of Mingy. (Def.’s 56.1(a)(3) Statement 9 31-33). While at the block
party, Kane drank alcoholic beverages. (Id., ] 34). At no time during the block party did Kane ever
arrest Goldsmith or anyone else. (Id., 35). Kane did not display his police star or any other item
identifying him as a police officer, nor did he call for or summon police assistance at any time during
the incidents alleged in the complaint. (Id., {{] 36-37). Kane was not carrying his duty weapon or
any other backup weapon during the block party at the time of the incidents alleged in the complaint.
(id., 4 38).
The Rules and Regulations of the Chicago Police Department, as well as relevant General Orders
of the Chicago Police Department, forbid officers from taking police action motivated by racial
animus or based on racial bias. (Def.’s 56.1(a)(3) Statement § 39). The General Orders of the
Chicago Police Department require an off-duty officer to take some action when he observes a crime
being committed (Id., { 40).

ANALYSIS
Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986)
(Celotex). All of the evidence and the reasonable inferences that may be drawn from the evidence
are viewed in the light most favorable to the nonmovant. Miller v. American Family Mutual Ins.,

203 F.3d 997, 1003 (7th Cir. 2000). Summary judgment may be granted when no “reasonable jury


it is different in kind from that authorized, far beyond the authorized time and space limits, or too
little actuated by a purpose to serve the master.” Shockley, 342 F.3d at 740 (7th Cir. 2003) (citing
Duffy, 966 F.2d at 314).

Based on the undisputed facts, genuine issues of material fact exist as to whether
Brian Murphy was the “peace-keeper” of the situation, therefore furthering the interest of the City
to preserve the peace. Even though it was in Brian Murphy’s personal interest to keep the peace in
his parents’ neighborhood, this does not foreclose that it is not also in the interest of the City.
Therefore, Brian Murphy’s action of getting between Goldsmith and Kane to keep them from
fighting could be construed as a pursuit of the City’s interest in keeping the peace or preventing a
crime from occurring. Additionally, Brian Murphy is required by the General Orders of the Chicago
Police Department to take some action when he observes a crime being committed. Accordingly,
genuine issues of material fact exist whether Brian Murphy’s action of getting between Goldsmith
and Kane was taken to prevent a battery, as required by the General Order of the Chicago Police
Department. Likewise, genuine issues of material fact exist whether Kane was acting within the
scope of employment on August 3-4, 2002.

CONCLUSION
For the reasons stated above, the City of Chicago’s Motion for Summary Judgment is

denied. {

Dated: /O~20- OF WY IAA

United States District Judge



While Brian Murphy was in his parents’ house on North Octavia Street, he heard an argument
ensue in the street (B.M.’s 56(b)(3)(B) Statement { 9). Brian Murphy ran outside and witnessed men
and women swearing and yelling. (Id., 10). Brian Murphy told the people yelling to go somewhere
else. (Id., 4 11). A group of people, including Goldsmith, Ryan Friel, Timothy Briski, Mingy,
Tom Moran, Kane, and others then continued southbound on Octavia Street towards its intersection
with Chase. (Id., 4 13). Hoping that the fight would not escalate beyond the yelling and screaming,
Brian Murphy followed the crowd to the comer of Chase and Octavia. (Id., 14). At the corner of
Chase and Octavia, Brian Murphy got in between Goldsmith and Kane in an attempt to break up the
fight, which he did successfully. (Id., ff 16, 17).

Brian Murphy cannot say for sure whether he acted as an officer in breaking up the fight and
telling the crowd to go somewhere else. (Id., | 18). Goldsmith knew at all times that Brian Murphy
was a police officer. (Id., J 19). Brian Murphy did not arrest or take custody of Goldsmith at
anytime during the block party (B.M.’s Response 25). Brian Murphy did not announce himself as
a police officer at anytime during the block party or the incidents alleged in the complaint. (Def.’s
56.1(a)(3) Statement 26). He did, however, identify himself as an off-duty police officer and
displayed his police star, which he carried in his wallet out of habit, to the responding officers to the
incidents alleged in the complaint. (B.M.’s 56(b)(3)(B) Statement {J 21, 22). Brian Murphy told
the responding officers that there had been an altercation and that he had separated the parties. (Id.,
23; Def.’s Response J 23). After asking the responding officers if they needed anything else from
him, Brian Murphy went back to his parents’ house. (B.M.’s 56(b)(3)(B) Statement §j 24).

Later, Brian Murphy learned that an argument had started across the street from his parents’

house involving Mingy and Goldsmith. (1d., | 25). Brian Murphy, himself, never summoned



could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (Anderson). However, a party cannot defeat summary judgment by relying on
unsubstantiated facts. See Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th
Cir. 2001) (Greer).

The City of Chicago argues that Goldsmith has failed to state a claim against the City under
745 ILCS 10/9-102. While the City included this argument in its Motion for Summary Judgment,
it, in essence, is moving to dismiss Goldsmith’s claim pursuant to Fed. R. Civ. P 12(b)(6). In
reviewing a motion to dismiss, the court considers all allegations in the complaint and any reasonable
inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall-Mosby v.
Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). Dismissal is warranted if“it appears
beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The “suit should not be dismissed if
it is possible to hypothesize facts, consistent with the complaint, that would make out a claim.”
Graehling v. Vill. of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995).

Section 9-102 provides, in pertinent part, that “A local pubic entity is empowered and
directed to pay any tort judgment or settlement for compensatory damages (and may pay any
associated attorney’s fees and costs) for which it or an employee while acting within the scope ofhis
employments liable...” 745 ILCS 10/9-102. While Goldsmith has not explicitly charged the City
with indemnification under 745 ILCS 10/9-102, Goldsmith has satisfied the requirements of notice
pleading. Notice pleading does not require pleadings of legal theories based in case law or statutes,
but merely requires a brief description of the claim. Shah v. Inter-Continental Hotel Chicago

Operating Corp., 314 F.3d 278, 282 (7th Cir. 2002). Specifically, the plaintiff's pleadings must



Minute Order Form (06/97)

United States District Court, Northern District of Dlinois

N: f Assigned Judy Sitting Judge if Oth
vor Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 02 C5777 DATE 10/20/2004
CASE Goldsmith vs. Flynn
TITLE

[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (6) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) ao Answer brief to motion due___. Reply to answer briefdue___.

(4) Oo Ruling/Hearingon_____sset for__—_att

(5) Qa Status hearing[held/continued to] [set for/re-set for]on______setfor_ at : ‘
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor_— at.
(7) oO Trial[set for/re-set for] on__—__at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) [ FRCP41(a)(2).

(10) Hl [Otherdocketentry) For the reasons stated in the attached memorandum opinion and order, the City
of Chicago’s motion for summary judgment is denied. Enter Memorandum Opinion and Order.

(1) ff [For further detail see order attached to the original minute order.]

oY _ | Nonotices required, advised in open court,

No notices required. number of notices

Notices mailed by judge’s staff.
Nolified counsel by telephone. OCT 2

saad

wl)

date mailed notice

Docketing to mail notices.

Mail AO 450 form. Lilge

24282

ye Date/time received in ;
central Clerk's Office mailing deputy initials



allow the district court to understand the gravamen of the plaintiff's complaint. Phelan v. City of
Chicago, 347 F.3d 679, 682 (7th Cir. 2003). Moreover, it has been repeatedly emphasized that the
civil rules establish notice pleading as the system for this Circuit. Shah, 314 F.3d at 282 (citing e.g.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Beanstalk Group, Inc. v. AM Gen. Corp.,
283 F.3d 856, 863 (7th Cir. 2002); Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995)).

Goldsmith’s Second Amended Complaint alleges that Brian Murphy was “at all times
relevant, acting under color of [his] office as a Chicago police officers [sic].” (Plaintiff's Second
Amended Complaint { 3). This is sufficient to give notice to the City that Goldsmith is seeking
indemnification for Brian Murphy’s actions under the relevant Illinois law.

Next, the City argues that even ifa claim has been stated against the City for indemnification
of Brian Murphy and Robert Kane, they were never acting within the scope of employment during
the incidents alleged in the complaint. Instead, the City alleges that both Brian Murphy and Kane
were acting out of purely their own interests in the incidents of August 3-4, 2002, and that, therefore,
summary judgment should be granted in favor of the City.

Since there is no precise definition for scope of employment, Pyne vy. Witmer, 129 11.24 351,
359 (1989), “[t]he INinois Supreme Court has looked to the Restatement (Second) of Agency § 228
to determine whether conduct of an employee is within the scope of his employment.” Shockley v.
Svoboda, 342 F.3d 736, 739-740 (7th Cir. 2003). Under Illinois law, conduct of a servant is within
the scope of employment if: “(1) it is of the kind the employee is employed to perform; (2) it occurs
substantially within the authorized time and space limits; and (3) it is actuated, at least in part, by
a purpose to serve the master. Pyne v. Witmer, 129 IIl.2d 351, 360 (1989); see also Duffy v. United

States, 966 F.2d 307, 314 (7th Cir. 1992). Conversely, it is not within the scope of employment if



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
KATIMAHMUD GOLDSMITH, )
)
Plaintiff, )
) No. 02 C5777
v. )
) Judge John W. Darrah
CHICAGO POLICE OFFICERS )
BRIAN MURPHY and ROBERT KANE, #13860, )
and COLLEEN MURPHY, )
MEGHAN MINGY, MARY MALOOLY, and ) seo “a
the CITY OF CHICAGO, ) co ,
) ¥ 4 004
Defendants. ) gus Bt

MEMORANDUM OPINION AND ORDER

Plaintiff, Katimahmud Goldsmith, brought suit against the City of Chicago, Chicago Police
Officers Brian Murphy and Robert Kane, and Colleen Murphy, Meghan Mingy, and Mary Malooly.
On June 23, 2004, all federal claims against the City were dismissed pursuant to a Release and
Settlement Agreement and Stipulation to Dismiss. This Settlement Agreement did not resolve “any
issue involving the liability under the state claims against the City of Chicago for any actions or
inactions of defendants Robert Kane and Brian Murphy.” The agreement permitted the City “to
remain a party in this action to protect the City’s interests regarding any issue concerning the scope
of employment of defendants Brian Murphy and Robert Kane.” Presently pending before the Court
is the City’s Motion for Summary Judgment.

BACKGROUND

On August 3, 2002, Goldsmith attended a block party on North Octavia Street in the Edison

Park neighborhood of Chicago. (Def.’s 56. 1(a)(3) Statement { 6). Goldsmith was the only African-

American present at the party. (Id., 7). After midnight, while the party was still going on,



Goldsmith and several other males took off their shirts. (Id., ] 8). Brian Murphy approached
Goldsmith and requested that he put his shirt back on, (Id., 9; B.M.’s Response 4 9)'. Goldsmith
put his shirt back on. (Def.’s 56.1(a)(3) Statement J 10; B.M.’s Response { 10). Shortly thereafter,
in the early morning hours of August 4, 2002, Goldsmith was attacked by various individuals while
at the party. (Def.’s 56.1(a)(3) Statement 10; B.M.’s Response {| 10). People screamed, yelled,
and shouted racial epithets while Goldsmith was struck. (Def.’s 56.1(a)(3) Statement, {ff 11, 13;
B.M.’s Response, J 10-11). Goldsmith suffered injuries to his spleen and to one eye as a result of
the attack. (Id., 15). Because of these injuries, Goldsmith was hospitalized for several days. (Id.,
q 16).

On August 3-4, 2002, Brian Murphy was employed by the Cityas a police officer. (Def.’s
56.1(a)(3) Statement { 19). However, Brian Murphy was off-duty on August 3-4, 2002, at the time
of the incidents alleged in the complaint. (Id., § 20). On August 3-4, 2002, Brian Murphy also
attended the block party along the 7300 block of North Octavia Street. (Id., 21). He arrived at the
block party between 9:00 p.m. and 10:00 p.m., wearing casual clothes. (Id., 23; B.M.’s Response
{| 23; B.M.’s 56(b)(3)(B) Statement ¥ 3). When Brian Murphy arrived, he saw Murphy, Mingy,
Chrissy Noble, Liz Kooy, and Bill Dossas sitting in front of Brian Murphy’s parents’ residence on
North Octavia Street. (B.M.’s 56(b)(3)(B) Statement ff 2, 5). Brian Murphy also saw Goldsmith
across the street with Eric Johnson at Donald Johansen’s house. (Id., [7). While at the block party,
Brian Murphy drank alcoholic beverages. (Def.’s 56.1(a)(3) Statement {] 24; Plaint.’s

Response { 24).

"Brian Murphy’s responses to Plaintiff's statements of facts and Brian Murphy’s statements of
facts are referenced as “B.M.’s Response” and “B.M.’s 56(b)(3)(B) Statement,” respectively.

2