A. Heck y. Humphrey

The Officers argue that Carter’s § 1983 claims of excessive use of force and false arrest
are barred by Heck v. Humphrey, 512 U.S. 477 (1994) because findings on those claims would
invalidate Carter’s conviction and sentence. In Heck the Supreme Court held that:

“in order to recover damages for...harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question by

a federal court’s issuance of a writ of habeas corpus.”
Id. at 486-7.
It is important to note, however, that Heck is not an automatic bar against all § 1983 claims. “If
the district court determines that the plaintiffs [§ 1983] action, even if successful, will not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed.” Jd. at 487. The Seventh Circuit has held that a false arrest claim
“does not inevitably undermine a conviction” because “one can have a successful wrongful arrest
claim and still have a perfectly valid conviction.” Booker v. Ward, 94 F.3d 1052, 1056 (7" Cir.
1996).

Carter’s conviction was based on evidence that included witness testimony, the victims’
identification of Carter in a photographic array, a lineup, and in court as well as his proximity, at
the time of his arrest, to the victim, the other defendants, and the instrumentalities of the crime.
The Officers do not indicate what, if any, pieces of evidence would be deemed inadmissable if
Carter’s § 1983 claim successful. Worst case, I think it is possible that the lineup identification

and the fact that Carter fled from the police could become inadmissible. Given the weight of the

evidence presented at trial, the exclusion of this evidence would not have affected Carter’s


liberal construction is to give a pro se plaintiff a break when, although he stumbles on a
technicality, his pleading is otherwise understandable.” Hudson v. McHugh, 148 F.3d 859, 864
(7* Cir. 1998). Ihave reviewed all of Carter’s filings with respect to this motion and find them
to be sufficiently understandable, Carter has gone through the Officers’ Undisputed Facts and
responded to each one stating that he admits, denies, or does not know. While he does not
reference the record or affidavits in his denials, he clearly and succinctly states the reason for his
denial. Additionally, the denials are generally consistent with the record and with the supporting
affidavits. For these reasons, I find that summary judgment on Carter’s claims for use of
excessive force is inappropriate.
Til. The City of Chicago

In his Complaint, Carter alleges that the City has allowed customs and practices to exist
that permitted the police officers to violate his constitutional rights. Specifically, Carter alleges
that the City failed to adequately train its officers, allowed its officers to engage in misconduct
without fear of punishment, and allowed its officers to maintain a “code of silence.” The City
claims it is entitled to summary judgment on this claim because Carter cannot and has not met
the requirements of Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) and its offspring. In
Monell, the Supreme Court held that a local government could only be held liable for the acts of
its employees or agents when a policy or custom, which was propagated by lawmakers or
officials, caused the injury. Jd. at 694. To satisfy Monell, the plaintiff must show that he
sustained a constitutional injury and that the injury was caused by an official policy of the
municipality. See Thompson v. Boggs, 33 F.3d 847, 859 (7" Cir. 1994); Pembaur v. Cincinnati,

475 U.S. 469, 479-80 (1986); City of Canton v. Harris, 489 U.S. 378 (1989).



a plaintiff must show that the arrest was made without probable cause. Booker v. Ward, 94 F.3d
1052, 1057 (7" Cir. 1996). “The existence of probable cause for an arrest is an absolute bar to a
§ 1983 claim for unlawful arrest.” Schertz v. Waupaca County, 875 F.2d 578, 582 (7" Cir.
1989). When officers are working in concert on an investigation, probable cause for an arrest
may be established by information possessed by any of those officers. People v. Holveck, 524
N.E.2d 1073 (Ill. App. Ct. 1988).

While Carter claims that he was arrested without probable cause, all the evidence is to the
contrary. Carter’s proximity to the victim, the instrumentalities of the crime, and his co-
conspirators created probable cause for his arrest. One officer saw the Blazer attempt to pull into
Carter’s garage. Officer Wessel saw Carter exiting his house. Carter ran from Officer Wessel
carrying what Officer Wessel believed was a gun. While Officers Whitehead and Garcia were
placing Carter under arrest, Officer Wessel found Theodore Parish, who was wearing a police
scanner, and a gun in the bushes a few feet away from Carter’s backyard. Additionally,
McClaine identified Carter as his kidnapper. These circumstances, which were likely considered
by Judge Panichi, created sufficient probable cause for Carter’s arrest. Thus, the Officers are
entitled to summary judgment on Carter’s false arrest claim.

Carter’s claims for use of excessive force are judged by the Fourth Amendment’s
objectively reasonable standard. Graham v. Connor, 490 U.S. 386, 396 (1989). Whether the
force used is “objectively reasonable” depends on the facts and circumstances in each case, Id.
Generally speaking, courts look at the “severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether [the suspect] is actively

resisting arrest or attempting to evade arrest by flight.” In this case, there is some dispute over


conviction. Thus, I find Carter’s § 1983 claims for false arrest and use of excessive force are not
barred by Heck.

B. Collateral Estoppel

The Officers argue that Carter’s false arrest and excessive use of force claims are barred
by collateral estoppel because they were resolved in his criminal case. “The doctrine of collateral
estoppel bars the trial of an issue that has been fairly and completely resolved in a prior
proceeding.” Talarico v. Dunlap, 281 Ill. App. 3d 662, 665 (Ill. App. Ct. 1996). After the close
of his criminal trial, Carter brought a Motion for a New Trial before Judge Thomas Panichi in
which he alleged, among other things, a lack of probable cause for his arrest. On November 8,
2001, Judge Panichi found all of Carter’s claims, including the lack of probable cause claim, “to
be without merit.” (Def. Ex. P at 56). Since Carter’s false arrest claim was adjudicated and
resolved in his underlying criminal case, I find his current § 1983 claim for false arrest is barred
by collateral estoppel.

Unlike the false arrest claim, the use of excessive force claim was not directly determined
in the criminal case. Nonetheless, the Officers argue that it is also barred because it is
“piggybacked” on Carter’s allegations that the Officers lacked probable cause to arrest him.
However, I disagree. A close relationship to a previously adjudicated claim is not enough to
confer collateral estoppel. Thus, I find Carter’s § 1983 use of excessive force claim is not
precluded by collateral estoppel.

C. The Merits

The Officers argue they are entitled to summary judgment on the merits of Carter’s false

arrest and excessive use of force claims. In order to succeed with a § 1983 claim for false arrest,


unreasonable amount of force, as is claimed by Carter, they are not entitled to qualified
immunity.
IL Officers Farr and Stahmer

The Officers argue that they are entitled to summary judgment on Carter’s § 1983 claims
for use of excessive force and intimidation because Carter has not shown they were personally
involved in Carter’s interrogation. Generally speaking, liability under § 1983 must be based on
personal responsibility. Schultz v. Baumgart, 738 F.2d 231, 238 (7" Cir. 1984). “An individual
cannot be held liable in a § 1983 action unless he caused or participated in an alleged
constitutional deprivation.” Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7" Cir. 1983). The
Officers argue that Carter cannot show they were personally involved in his alleged
mistreatment. The Officers claim that they were never involved in interrogating Carter and were
never alone with Carter. Officer Podbielniak, the officer in charge of the investigation, confirms
these Officers’ statements. However, Carter claims in his Complaint, Deposition, and Affidavit
that it was either Officer Farr or Stahmer who threatened him, punched him in the groin, and
called him a “nigger.” Carter’s assertions are sufficient to create a genuine issue of material fact
on this issue.

The Officers also argue that summary judgment is appropriate because Carter has failed
to comply with Local Rule 56.1. The Officers point out that Carter’s response to their Statement
of Undisputed Facts affirmatively sets forth facts and fails to reference specific parts of the
record or supporting affidavits. Because of these deficiencies, the Officers claim that their
Statement of Undisputed Facts should be accepted as true. However, district courts must

construe pro se pleadings liberally. Haines v. Kerner, 404 U.S. 519 (1972). “The essence of


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge James B. Zagel ar Acne judge
CASE NUMBER 02 C 2684 DATE 4/29/2004
CASE CARTER vs. CHICAGO, ET AL
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3d party plaintiff, and (b) state briefly the nature

of the motion being presented.}

MOTION:
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) o Answer brief to motion due___. Reply to answer brief due___
(4) QO Ruling/Hearingon set for__at
(5) Oo Status hearing{held/continued to] [set for/re-set for]on__———ssetfor_——at_—
(6) im Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_———sat_—
(7) oO Trial{set for/re-set for]on__at
(8) a [Bench/Jury trial] [Hearing] held/continued to___at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OFRCP41(a\(1) O FRCP41(a)(2).
do [Other docket entry] | Motion (101-1) for summary judgment as to Carter’s claims of use of

excessive force against officers Whitehead, Garcia, Stahmer, and Farr is DENIED. Motion (104-1)
for summary judgment as to Carter’s claim against the City and as to Carter’s claim of false arrest
against defendants Whitehead, Garcia, and Wessel is GRANTED. Enter memorandum opinion

and order.

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

No notices required, advised in open court. ew

No notices required. ;
umber of notices

Notices mailed by judge’s staff:

MAY 3- 2004

date dockeied,

Notified counsel by telephone.

a | Docketing to mail notices.

nual inivials

Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notio
courtroom —

DW deputy’s
initials

Date/time received in

central Clerk's Office mailing deputy initials

f

lant
wo



Additionally, § 1983 usually requires that plaintiffs plead more than a single
unconstitutional incident to state a claim based on municipal policy. Calusinski v. Kruger, 24
F.3d 931, 936 (7" Cir. 1994). Generally, isolated acts committed by non-policymaking officials
do not amount to a “custom,” which “implies a habitual practice or a course of action that
characteristically is repeated under like circumstances.” Sims v. Mulcahy, 902 F.2d 524, 542 (7"
Cir. 1990). Carter has not produced any evidence to suggest that the failure to train, failure to
discipline, or the “code of silence” was widespread. To support his claims, Carter points to two
cases— Mearday v. City of Chicago, 196 F. Supp. 2d 700 (N.D. Ill. 2002) and Latanya Haggerty’s
case. However, neither of these cases work to support Carter’s claims. In Mearday, the court
found that the officer had acted in an objectively reasonable manner, Jd. at 715, and in Latanya
Haggerty’s case the officers involved were disciplined by the police force, Therefore, I find
summaty judgment on Carter’s § 1983 claim against the City is appropriate.

For the reasons stated herein, the Defendants’ Motions for Summary Judgment are
GRANTED as to Carter’s claims against the City and as to Carter’s claim of false arrest against
Officers Whitehead, Garcia, and Wessel. Defendants’ Motions for Summary Judgment are
DENIED as to Carter’s claims of use of excessive force against Officers Whitehead, Garcia,
Stahmer, and Farr.

ENTER:

6 GS

Cite B. Zagel (0)
nited States District iidge
pate: 24 Gated Zeal

11


Carter has presented no evidence tending to show that the City promulgated customs or
policies that allowed the Officers to violate subjects’ rights as required by Monell. Other than
Carter’s own assertions, there is no evidence in the record that the City failed to train or
discipline its employees. The City, on the other hand, has presented evidence that Chicago
Police officers are taught the requirements for use of deadly force and are trained in the use of
such force. Additionally, the Rules and Regulations promulgated by the City expressly prohibit
police officers from violating any law and state that any misconduct will be investigated. The
City has produced evidence that those investigations have led it to discipline officers. Carter has
presented no evidence to the contrary. In fact, Carter even states in his own Complaint that:

an Office of Professional Standards investigation...was held on July 11, 2000 at

6:15am where several Chicago Police Department, Bureau of Operational

Services, and Office of Professional Standards personnel attended to discuss facts

relevant to Plaintiff's being shot and arrested. (P. Complaint at 18).

The fact that the City investigated the Officers’ use of force in Carter’s own arrest directly
contradicts Carter’s allegations that the City has a policy of allowing its officers to
indiscriminately and without fear of discipline violate suspects’ rights.

There is also no evidence in the record, other than Carter’s own assertions, to support
Carter’s claim that there exists a “code of silence” within the Chicago police force. The City has
presented evidence that it conducts investigations during which it requires officers to be truthful
and forthcoming with evidence of misconduct. Carter bases his “code of silence” assertion on
statements made by his parents and uncle, who are former Chicago police officers. Carter,

however, refuses to supply any contact information concerning his parents or his uncle and has

not submitted any admissible evidence concerning these statements.

10


the events that occurred after Carter ran to the backyard. Officers Whitehead and Garcia claim
that Carter did not stop running toward them even after they announced themselves as police
officers and told him to do so. Carter, on the other hand, claims that he stopped, dropped the cell
phone, put his hands in the air, and stood in front of the officers for between ten and fifteen
seconds. The differences in the Officers’ and Carter’s recollections of events leading up to the
shooting create a genuine issue of material fact, making summary judgment inappropriate at this
time.

D._ Qualified Immunity

Finally, the Officers argue that they are entitled to qualified immunity. Under the
doctrine of qualified immunity, public officials “performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). As the Supreme Court has
explained “(a qualified immunity defense] provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 US. 335, 341
(1986).

Qualified immunity shields the Officers from liability from Carter’s claims for faise
arrest. As discussed above, the Officers had sufficient probable cause to arrest Carter. Since the
arrest was well within the limits of the law, the Officers are entitled to qualified immunity.
Qualified immunity does not, however, shield the Officers from Carter’s claims for use of
excessive force. Unlike probable cause for the arrest, the reasonableness of force used during

Carter’s arrest has not been established. If Officers Whitehead and Garcia knowingly used an


Analysis

The City and the Officers now claim they are entitled to summary judgment on each of
Carter’s claims. Summary judgment is proper when there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322-323 (1986). In determining whether any genuine issue of material fact exists, I must
construe all facts in the light most favorable to the non-moving party and draw ail reasonable and
justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The burden is on the moving party to identify portions of the pleadings, depositions, and other
discovery-related materials that demonstrate an absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party to “set forth specific
facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(c). Merely alleging a
factual dispute is insufficient to defeat a motion for summary judgment. Samuels v. Wilder, 871
F.2d 1346, 1349 (7" Cir. 1989). Instead, the non-moving party must set forth specific facts,
through affidavits or other materials, that demonstrate disputed material facts. Anderson, 477
U.S. at 256. A genuine issue of fact exists only when, based on the record as a whole, a
reasonable jury could find for the non-movant. Pipitone v. United States, 180 F.3d 859, 861 (7th
Cir. 1999).
1. Officers Whitehead, Garcia, and Wessel

‘The Officers argue they are entitled to summary judgment on Carter’s § 1983 claims of
use of excessive force and false arrest for the following reasons: (A) the claims are barred by
Heck v. Humphrey, (B) the claims are barred by collateral estoppel, (C) the claims are without

merit, and (D) they are entitled to qualified immunity.



and yelled at Carter to stop. Carter claims that he did not see Officer Wessel’s badge and did not
hear Officer Wessel identify himself as a police officer. Carter ran around the house into the
backyard toward Officers Whitehead and Garcia. Officers Whitehead and Garcia identified
themselves and yelled at Carter to stop. Carter claims that he stopped, put his hands up in the air,
turned slightly toward the officers, and dropped the black cell phone he was carrying. The
Officers, however, claim that Carter continued to move toward them with a black object in his
hand, which they believed was a weapon. Officer Whitehead shot Carter in the leg and Carter
fell to the ground. Carter was then handcuffed by Officer Garcia who allegedly pressed his foot
against Carter’s neck.

After his arrest, Carter was taken to the Blue Island police station where he was detained.
Carter alleges that during his detention either Officer Stahmer or Farr called him a “nigger,”
punched him in the groin, and threatened him with further use of force if he did not participate in
alineup. Officers Farr and Stahmer, however, claim they never interrogated Carter and were
never alone with Carter. According to the Officers, the only contact they had with Carter was in
giving him instructions during a lineup held on July 11, 2000 and, in Farr’s case, asking Carter
some questions during “booking.” Officer Frank Podbielniak, the officer in charge of the
investigation, claims that it was he and Detective Douglas Hoglund who attempted to interview
Carter before the lineup, not Officers Farr and Stahmer. Officer Podbielniak attests that Officer
Farr and Stahmer were never alone with Carter and did not question Carter outside the lineup and

booking.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION MAY 3 ~ 2 004
LEANDER CARTER,
Plaintiff,
v. No. 02 C 2684
Judge James B. Zagel
CITY OF CHICAGO, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Factual Background

Plaintiff Leander Carter has brought claims, under 42 U.S.C. § 1983, against the City of
Chicago and Officers Whitehead, Wessel, Garcia, Stahmer, and Farr for incidents that took place
during and after his arrest. Carter alleges that the Officers used excessive force during and after
his arrest and arrested him without probable cause. Carter alleges that the City perpetuates
customs that permit officers to take such actions and to violate subjects’ constitutional rights
without fear of discipline.

The facts surrounding Carter’s arrest and detention are as follows. On the evening of July
10, 2000, Officers Garcia and Wessel responded to a call for assistance from an alley off 91*
street. Police officers had found Basil McClaine, who had been kidnaped and threatened,
handcuffed in a Chevy Blazer. After arriving at the alley, Officers Wessel and Garcia met up
with Officer Whitehead, who was on foot behind a residence at 9146 Dauphin Street. Officer
Wessel let Officer Garcia out of their red, unmarked squad car and drove to the front of the
residence where he saw Carter exiting the front door. Officer Wessel was wearing plain clothes,

a black bulletproof vest, and his police star. Officer Wessel got out of his car, identified himself,

\3\