Vv.

Claim IIT presents a jury question.

The definition of a civil conspiracy is quite broad:

To be liable as a conspirator you must be a voluntary

participant in a common venture, although you need not have

agreed on the details of the conspiratorial scheme or even
know who the other conspirators are. It is enough if you
understand the general objectives of the scheme, accept them,
and agree, either explicitly or implicitly, to do your part to
further them,
Jones, 856 F,2d at 992. Because direct evidence of a conspiracy is
usually impossible to obtain, absent the testimony of a co~
conspirator, circumstantial evidence is the usual manner of proving
a civil conspiracy. Therefore, the question of “whether an
agreement exists should not be taken from the jury in a civil
conspiracy case so long as there is a possibility that the jury can
infer from the circumstances” that the defendants conspired to
injure the plaintiffs. Hampton v, Hanrahan, 600 F.2d 600, 621 (7th
Cir. 1979).

This conspiracy claim presents a jury question because the
plaintiffs have offered circumstantial evidence suggesting a
conspiracy. While the defendants claim that the officers trickled
into the field house, one group at a time, the plaintiffs claim
that the officers entered all at once. The plaintiffs offer
evidence that the officers interrupted the proceedings and searched

the attendees in a cooperative and organized manner. If a jury

believed the plaintiffs, it would be reasonable to infer from the

13


allegedly alerted the police to the threat of danger at the field
house. An anonymous tip such as that alleged by the defendants
would not, by itself, justify the wholesale, invasive search of
large groups of people that the plaintiffs describe in their
depositions. They claim that children were searched; that adults’
purses, diaper bags, and pockets were searched; that the bodies of
basketball players clad only in shorts and tank tops were searched.
Viewing the facts in the light most favorable to the plaintiffs, a
jury question exists as to the reasonableness of these searches in
light of all the circumstances. If the jury accepts the plaintiffs’
version of what occurred, qualified immunity would not protect the
officers; the need for individualized suspicion prior to a search
for weapons has been clearly established doctrine for thirty-five
years. Id. Summary judgment is thus inappropriate on this claim
insofar as it applies to individuals who were searched.
II.

Claim II, the plaintiffs’ claim that all occupants of the
field house were seized and detained, is barred by qualified
immunity.

Plaintiffs contend that all class members were effectively
imprisoned in the field house. Officers were posted at the exits,
leading the plaintiffs to believe that they were not free to leave.

This section addresses only the mass seizure of those plaintiffs



Furthermore, the officers inside the field house were not
merely witnesses to the searches; according to the plaintiffs, they
assisted by providing crowd control, moving the plaintiffs from the
gymnasium into the lobby, and otherwise helping the process along.
Such knowing cooperation with fellow officers who were performing
unconstitutional acts has also been found to be a basis for § 1983
liability. Gagnon v. Ball, 696 F.2d 17, 21 (2d Cir. 1982).

However, the officers who were posted outside the field house
and could not see the searches from where they stood (Officers
Brown, Elliott, Brandon, Lee, Griffith, and Zacek) cannot be
considered to have had the same opportunity to intervene as those
indoors. Courts in this circuit have found that officers who were
not physically present during unconstitutional acts committed by
their peers may not be liable under § 1983 for their failure to
intervene, See Brzozowski v. Gorniak, No. 93 C 3830, 1995 U.S.
Dist. LEXIS 18396, at *18 (N.D. Ill. Dec. 12, 1995) (Zagel, J.)
(granting summary judgment in favor of defendant police officers
who waited outside while other officers searched the plaintiff’s
home); Cannaday v. Gibas, 803 F. Supp. 1516, 1519 (E.D. Wis. 1992)
(dismissing claim against defendant agent who waited downstairs
while fellow agents searched the upper level of the plaintiff’s
home); Sampson v. Weidell, No. 84 C 6360, 1986 U.S, Dist, LEXIS
24794, at *13 (N.D, Ill. May 30, 1986) (Marovitz, J.) (granting

partial summary judgment in favor of defendant firefighters who did



that they would be detained ... if they simply refused to answer
[questions].” Id. at 218. Most recently, in United States v.
Drayton, 536 U.S, 194 (2002), an interstate bus driver permitted
three police officers to board a bus. Two officers were stationed
at the front and rear of the bus, facing the passengers, while a
third patrolled the aisle, asking passengers for permission to
search their luggage and their bodies. Plaintiffs consented to the
search and were found to be in possession of cocaine. Expanding on
a more limited ruling with similar facts in Florida v., Bostick, 501
U.S. 429 (1991), the Supreme Court ruled that the district court
had properly denied the plaintiffs’ motion to suppress this
evidence. Relying largely on Delgado, the Drayton court explained
that the circumstances would not suggest to a reasonable person
that “he or she was barred from leaving the bus or otherwise
terminating the encounter.” Id. at 204.

It is true that all these cases may be distinguished from the
facts at hand, Unlike the officers in Delgado, who sought only the
opportunity to question the workers, defendants in this case
allegedly were seeking to physically search the plaintiffs; unlike
the officers in all the other cases cited above, who requested
permission from the plaintiffs for each action they took,
defendants here allegedly phrased their instructions as commands.

However, such distinctions do not permit Count II to survive

the defendants’ qualified immunity defense. “Qualified immunity


who were not searched; seizure incident to search is discussed
above,

The test for determining whether an encounter between a police
officer and a citizen is a seizure or detention within the meaning
of the Fourth Amendment is an objective one; a citizen’s subjective
perception that he was not free to leave does not matter. “A person
has been ‘seized’ within the meaning of the Fourth Amendment only
if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed he was not free to leave.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980).
Circumstances that might indicate a seizure, “even where the person
did not attempt to leave,” include “some physical touching of the
person, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” Id.

The defendants point to a number of Supreme Court rulings that
suggest that as a matter of law, a “reasonable person” is very
strong-willed indeed. In INS v. Delgado, 466 U.S. 210 (1984),
federal officers entered a factory in order to question the workers
about their immigration status, Officers were posted at the doors
to ensure that no one left the premises without being questioned.
The court held that the workers were not seized because “most
workers could have had no reasonable fear that they would be
detained upon leaving,” Id, at 219. Further, posting of officers by

the doors “should have given [the workers] no reason to believe


The defendants argue that even if the officers who actually
conducted the searches violated the Fourth Amendment, their fellow
officers who did not search anyone cannot be liable for their co-
defendants’ actions. They are incorrect in the case of officers
inside the field house who witnessed the searches, but correct in
the case of the officers who were stationed outside the field house
and could not see what was going on inside.

Police officers may be liable for their failure to protect a
plaintiff when a fellow officer violates a plaintiff's rights in
their presence. Byrd v. Brishke, 466 F.2d 6, 10 (7th Cir, 1972).

An officer who is present and fails to intervene to prevent

other law enforcement officers from infringing the

constitutional rights of citizens is liable under § 1983 if
the officer had reason to know ... that any constitutional
violation has been committed by a law enforcement official;
and the officer had a realistic opportunity to intervene to
prevent the harm from occurring.
Yang v. Hardin, 37 F,3d 282, 285 (7th Cir. 1994) (emphasis in
original). Some of those officers insist that they saw no searches
performed whatsoever, but other officers acknowledge searching
multiple individuals. According to the plaintiffs, unconstitutional
searches took place in the lobby, the gymnasium, and private
offices in the field house. If the plaintiffs’ version of events is
accepted by the jury, then every officer inside the field house may

have seen what was occurring, and had a realistic opportunity to

intervene.


Niue Order Fort (06197)

United States District Court, Northern District of Hlinois

Name of Assigned Jud, tai i Sitting Judge if Oth
mo Maistrate Judge Blaine U. Bucklo vv Assitved Judge
CASE NUMBER O1 C 3228 DATE 6/30/2003
CASE Williams, et al. vs. Brown, et al.
TITLE

[In the following box (a) indicate the party tiling the motion, ¢.¢., plaintilf, defendant, 3rd purty plaintiff, and (6) state briefly the nature
of the motion being presented. |

MOTION;
DOCKET ENTRY:
—
() ao Filed motion of | use listing in “Motion” box above.|
(2) Oo Briel in support of motion due.
(3) a Answer brief lo motion due_ __.- Reply to answer bricfdue__ __.
(4) Oo Ruling/Hearing on set for ats
(3) Qo Status hearing[held/continued to] [set for/re-set for]on_ set for_ at,
(6) im Pretrial conference[held/continued to] [set for/re-set for}on set for at__
(7) Oo Trial[set for/re-set forlon. at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at_
(9) Qa ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) Local Rule 41.1 COFRCP41(ay(1) C1 FRCPAL(a)(2).
On _| [Other docket entry} Defendants’ motion for summary judgment is denied in part and granted in

part, ‘he motion is granted as to count IT, granted in part and denied as to count I , and denied as to counts
TU, 1V and V, inter Memorandum Opinion and Order, Pretrial order will be due by 8/8/03 and response
to any motions in limine by 8/22/03. Pretrial conference set for 10/3/03 at 3:00 p.m. Trial set for 12/1/03
at 9:30 am.

dl) a [For further detail see order attached to the original minute order]

No notices required, advised in open court. “Document

‘Number; :,

ay

No notices required jumbs! yf nations

vw Notives mailed by judge's staff.

Notified counse] by telephone.

Docketing to mail notiges

Mail AQ 459 for.

Copy to judge/mayistrate judge, qintceye

ap:
courtroom 9b 3S as
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Datehime reveived in Ci 5-2 - 4 7
central Clerk's OMtiec: ~“ vwsiling deputy initials



said to be retaliatory or discriminatory.” Tabor v. Chicago, 10 F.
Supp. 2d 988, 994 (N,D. J11. 1998) (Gettleman, J.). The Seventh
Circuit has found that the doctrine applies in cases arising under
§ 1985, Travis v. Gary Cmty. Health Ctr., 921 F.2d 108, 110-11 (7th
Cir, 1990), but has not ruled on whether it applies in cases
arising under § 1983. Moreno v. Town of Cicero, No. 01 C 1726, 2002
U.S. Dist. LEXIS 16915, at *10 (N.D. Ill. Sep. 5, 2002)
{Leinenweber, J.}. The remaining circuits are split on the
question. Salto v. Mercado, No. 96 C 7168, 1997 U.S. Dist, LEXIS
5796, at *3 (N.D, Ill. Apr. 24, 1997) (Zagel, J.). Prior to the
Travis ruling in 1990, the Seventh Circuit did uphold, without
discussion of the intracorporate conspiracy doctrine, a jury
verdict finding that police officers has conspired to violate the
rights of a plaintiff who was framed for murder. Jones v. City of
Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988),

Since Travis, courts in this district have been divided as to
whether to apply the intracorporate conspiracy doctrine in cases
that, like this one, involve § 1983 suits against police who
allegedly conspired to violate a citizen’s constitutional rights.
See, e.g., David v. Village of Oak Lawn, No. 95 C 7368, 1996 U.S,
Dist. LEXIS 5624, at *11 (N.D. Ill. Apr. 29, 1996) (Gettleman, J.)
(holding sua sponte that the intracorporate conspiracy doctrine
barred a conspiracy complaint against police officers whose ability

to injure the plaintiff was derived solely from their positions

11


not enter the plaintiff's residence). Even if the officers posted
outside should have realized what was allegedly going on indoors,
such negligent failure to perceive a constitutional violation is
not actionable under § 1983. Rascon v. Hardiman, 803 F.2d 269, 276
(7th Cir, 1986). Only an officer who willfully turns a blind eye to
his colleagues’ actions may be liable. Id. at 277. The plaintiffs
simply do not present any evidence that the officers outside
intentionally chose not to perceive the searches. Nor did the
outside officers do anything that could permit such an inference to
be drawn from their behavior. I find that the officers who did not
enter the field house did not have a reasonable opportunity to
intervene on behalf of the plaintiffs, and thus summary judgment is
granted in favor of Officers Brown, Elliott, Brandon, Lee,
Griffith, and Zacek on plaintiffs’ search and seizure claims,
Iv.

Claim III, the plaintiffs’ conspiracy claim, is not barred by
the intracerporate conspiracy doctrine.

Plaintiffs allege that the defendants entered into a
conspiracy to deprive them of their constitutional rights by
agreeing in advance to commit the alleged illegal acts. Defendants
argue that the plaintiffs’ conspiracy claim must fail due to the
intracorporate conspiracy doctrine, which states that “employees of
a corporation who jointly pursue its lawful business do not become

‘conspirators’ when acts within the scope of their employment are

10



protects public officials from civil suit based on their
discretionary functions except where such conduct violated ‘clearly
established’ federal law.” Burns v. Reed, 44 F.3d 524, 526 (7th
Cir. 1995). The contours of the right must be so clear that any
reasonable official would know that his actions violate the right.
Id. The plaintiff bears the burden of meeting this standard. Id.
This the plaintiffs cannot do. Reasonable legal minds could differ
as to whether, under Delgado and Drayton, the officers’ actions at
the field house constituted a seizure of the attendees who were not
searched. Where the application of the law is not certain even to
trained lawyers, it would be incongruous to state that any
reasonable police officer should understand the limits of its
reach. The “seizing” at issue here took place within a gray area of
Fourth Amendment law whose contours are still under development.
Thus, insofar as the unlawful detention claim is concerned, the
defendant police officers are sheltered by qualified immunity.

As discussed above, individual plaintiffs who were searched
were seized during the search process. But summary judgment for the
defendants is granted as to those plaintiffs who occupied the field
house and who were not searched.

Imr.

All officers inside the field house may be liable for the

searches and seizures complained of in Claim I, but those who were

stationed outside may not.


I.

Claim I, the plaintiffs’ unlawful search and seizure claim,
prasents a jury issue.

As a preliminary matter, a distinction must be made between
the mass seizure of all occupants of the field house, and the
seizure of individuals who were subjected to searches. Any mobile
person who is searched against his will must be seized during the
search; otherwise, he would simply walk away. See Terry v. Ohio
392 U.S. 1, 16 (1968) (“It must be recognized that whenever a
police officer accosts an individual and restrains his freedom to
walk away, he has ‘seized’ that person.”). Although the complaint
uses Similar language to describe seizure of individuals incident
to searches (Count I) and the mass seizure of the entire group by
blocking the exits (Count II), the two types of seizure must be
analyzed separately. The presence or absence of one does not imply
the presence or absence of the other.

In order to conduct a thorough search of a person, police

must have individualized prebable cause. Ybarra v. Illinois, 444

U.S. 85, 91 (1979). In order to conduct a brief investigatory stop

and weapons pat-down, police must have reasonable individualized

suspicion that the individual searched possesses a weapon. Terry,
392 U.S, at 27.

Both parties devote significant portions of their briefs

disputing the existence and significance of an anonymous tip that


mass arrival and subsequent cooperation that some planning had
taken place in advance. It would also be reasonable to infer that
the plan included, implicitly or explicitly, the universal
detention and search of attendees. Thus, summary judgment on the
claim is not appropriate.

vI.

Claims IV and V, plaintiffs’ state-law claims, withstand
defendant's motion for summary judgment.

Claim IV is based on the [Illinois tort of false arrest and
detention. Claim V is based on 745 InL. Comp, Stat. 10/9-102, which
makes the city liable for the torts committed by its employees
within the scope of their employment. The defendants’ only argument
in favor of summary judgment on claims IV and V is that summary
judgment for the defendants on claim I, II, and III would
necessitate the dismissal of claim IV, which is redundant of claims
I and II, and moot claim V. This may be true, but as I decline to
make such a ruling regarding claims I, II, and III, the defendants
present no relevant support for their motion, The motion for
summary judgment on claims IV and V is denied.

The motion for summary judgment is Denrep in part and GranTEeD in
part.

ENTER ORDER?

Pane

Elaine E. Bucklo
United States District Judge
Dated: June 30, 2003

14



plaintiffs’ bodies, pockets, coats, and bags, a process that took
more than an hour,

According to the defendants’ motion for summary judgment, the
police arrived in groups over the course of the evening, They never
blocked any exits or conducted any searches in the absence of
individualized reasonable suspicion. The only invasive search
conducted was incident to the arrest of a plaintiff for disorderly
conduct. They did, however, recover two illegal firearms from the
scene,

The plaintiffs filed a five-count complaint. Count I alleges
that the plaintiffs were unlawfully searched and seized in
violation of the Fourth and Fourteenth Amendments. Count II alleges
that the plaintiffs were unlawfully detained in violation of the
Fourth and Fourteenth Amendments. Count III alleges a civil
conspiracy among the officers to violate the plaintiffs’ civil
rights. Counts IV alleges that the defendants committed the tort of
false imprisonment and detention under Illinois Law. Count V seeks
to hold the city liable for the injuries caused by its employees.

The defendants move for summary judgment on all counts. When
deciding a motion for summary judgment, I must view all admissible
evidence in the light most favorable to the non-moving party.
Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir. 2002). I grant the
motion as to Count II, grant it in part and deny it in part as to

Count I, and deny it as to Counts III, IV, and Vv.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS -—
EASTERN DIVISION H

Ju t 2003
ANDRE WILLIAMS, at al.,
Plaintiffs,

ve No. Q1 C 3228

LT, ERNEST BROWN, et al.,

Defendants.
MEMORANDUM OPINION AND ORDER

This class action suit arose from the alleged detention and
search of numerous residents of the Stateway Gardens neighborhood
during a basketball tournament on February 22, 2001. The
plaintiffs, spectators at the event, claim that they were injured
when police unlawfully forced them to submit to these searches, and
filed this class action seeking damages and other relief.

The facts of the case are hotly disputed. According to the
plaintiffs, police supervisors and officers engaged in a conspiracy
to violate their rights. Following orders from their supervisors,
the police raided the facility en masse, stopped the proceedings,
and conducted apparently suspicionless, invasive searches of all
participants and spectators, including women and children.
According to this version of events, at no time did the police
question the plaintiffs or ask permission to conduct the searches.
Instead, they simply ordered the plaintiffs to exit the gymnasium

and enter the lobby, blocked the exits, and thoroughly searched the


within the corporate entity); but see Salto, 1997 U.S. Dist. LEXIS
5796, at *5 (holding that while a police department cannot conspire
with itself when formulating policy, a charge that “a number of
officers took concerted action to work together to harm” a
plaintiff is “a classic charge of conspiracy”); Cooper v. Harris,
No, 99 C 1623 and No. 98 C 1624, 1999 U.S, Dist. LEXIS 6149, at *8
(N.D. Ill. Apr. 13, 1999) (Grady, J.) (following Salto); Northen v.
City of Chicago, No. 93 € 7013, 1999 U.S. Dist. LEXIS 7897, at *12
(N.D. T1l. May 17, 1999) (Holderman, J.) (same); Newsome v. James,
No. 96 C 7680, 2000 U.S. Dist. LEXIS 5678, at *46 (N.D. Ill. Apr.
26, 2000) (Plunkett, J.) (holding that the intracorporate
conspiracy doctrine was “created to shield corporations and their
employees from conspiracy liability for routine, collaborative
business decisions that are later alleged to be discriminatory,” so
where a group of officers took concerted action to harm victims,
conspiracy liability was appropriate); Moreno, 2002 U.S. Dist.
LEXIS 16915, at *10 (following Newsome)

I am persuaded by the reasoning of Judge Plunkett in Newsome.
The mass search and detention alleged here was far from routine.
Viewing the facts in the light most favorably to the plaintiffs,
the defendants detained and searched an entire crowd of men, women,
and children without individualized suspicion, The policy motive

behind the doctrine does not apply.

12