Defendants have offered no argument as to the applicability of Heck to Falcone’s allegation of
unlawful search and seizure via the blood and urine tests, and the Court finds none. The blood
and urine samples, even if taken unlawfully, were taken from Falcone well after the actions that
supported her resisting arrest conviction. It is quite possible that a trier of fact could find that
she resisted arrest while at the roadside, and then was unlawfully searched or seized by the
taking of the samples at the hospital and/or police station. A judgment on that ground would not
necessarily impugn her resisting arrest conviction. Thus, Defendants’ motion for summary
judgment on Count II is denied on Heck grounds.

Defendants also make no meaningfully developed argument that there was probable
cause for the searches and seizures at issue, although Defendants mention the unlawful search
and seizure claim in their Reply to argue that they have not conceded that the officers did not
have probable cause to take the samples from Falcone (D.E. 55 at 3). Defendants also respond to
Falcone’s argument that Count II is controlled by Herzog v. Village of Winnetka, 309 F.3d 1041

(7th Cir. 2002),"? merely by arguing, summarily, that Falcone’s reliance on Herzog is misplaced

"2 Tn Herzog, the plaintiff alleged that she was driving home from a dinner at which she
had consumed two sips of wine. 309 F.3d at 1042. She pulled over to the side of the road to
check out a problem with her car, having committed no speeding or other traffic violation. Id. A
police officer pulled over behind her, pushed her down, made her perform some kind of field
sobriety tests (which she passed), and then made her blow into a personal breath screen device
(which result was 0.00). Id. at 1043. The officer took the plaintiff to the police station and
ultimately took her to the hospital for blood and urine tests. Jd. The plaintiff was told that if she
refused either test, the consequence would be to lengthen the period for which her drivers license
would be suspended. Jd. The Seventh Circuit, taking as true the plaintiffs statement of facts,
held that “(fjorcible extraction of blood when there is no reason to think it will yield evidence of
crime is an unlawful search” that violates the Fourth Amendment. Jd. at 1044 (citing Skinner v.
Ry. Labor Executives’ Ass'n, 489 U.S. 602, 616 (1989); Schmerber v. California, 384 U.S. 757,
769-72 (1966); United States v. Husband, 226 F.3d 626, 620 (7th Cir. 2000)). The Court
rejected the notion that the plaintiff consented to the tests, on the ground that her consent under
the threat of longer suspension was a “coerced consent.” Jd.

19


facts of this case—again, at least taking Falcone’s version of truly disputed facts. Smith v. Ball
State Univ., 295 F.3d 763, 766-67, 770 (7th Cir. 2002), for example, involved an instance where
the officers reasonably interpreted, based on undisputed facts, that the semi-coherent plaintiff
who crashed his car, nearly hit pedestrians, and was flailing with officers from behind the wheel
of his car, was an intoxicated and combative driver, notwithstanding that the plaintiff actually
was suffering from a diabetic coma. But reading the factual disputes and gaps most favorably to
Falcone, she alleges that she gave no objective signs whatsoever of being intoxicated and was
not a meaningful threat that required a serious use of force.

Similarly, Bell v. Irwin, 321 F.3d 637 (7th Cir. 2003), is clearly distinguishable, as the
plaintiff who was subjected to use of potentially deadly force (in the form of beanbag rounds
propelled by a shotgun), on the undisputed facts clearly presented an imminent and serious
danger to himself and others. The plaintiff was in possession of several knives and a meat
cleaver, had driven one of the knives into the wall by his front door and hurled others in the
direction of the police, had told the police chief that he would kill any officer who tried to
apprehend him and then would kill himself, and was threatening to blow up his home with
propane and kerosene. Jd. at 638-39. Although it is certainly possible that the facts of the
instant case involved a clear and serious danger—for example, if a fact-finder were to reject
some or all of Falcone’s version of the events, or if she were found to be in a position vis-a-vis
her car where she presented a non-frivolous risk of reentering her vehicle and fleeing onto the
road—the few undisputed facts in the record sub judice bear no meaningful resemblance to those
in Bell.

In short, there are extensive factual disputes and gaps concerning the excessive force
claim that renders summary adjudication inappropriate. See generally Gregory v. Oliver, 226 F.

13


accord Van Stan v. Fancy Colours & Co., 125 F.3d 563, 567 (7th Cir 1997) (“Conduct is
extreme and outrageous only if the conduct has been so outrageous in character and so extreme
in degree, as to go beyond all possible bounds of decency.”) (internal quotation and citations
omitted); Doe, 641 N.E.2d at 507 (teaching that “[c]onduct is of an extreme and outrageous
character where ‘recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim ‘Outrageous!””) (citations omitted).
Precedent teaches that misconduct does not meet this demanding standard merely because it is
“characterized by malice or a degree of aggravation which would entitle the plaintiff to punitive
damages for another tort.” Van Stan, 125 F.3d at 567 (internal quotation and citation omitted).
Nor, for example, from the employment law context, is misconduct necessarily extreme and
outrageous even where it is sufficient to constitute sexual harassment. Oates v. Discovery Zone,
116 F.3d 1161, 1174 (7th Cir. 1997) (collecting cases). “Whether conduct is extreme and
outrageous is judged on an objective standard based on all the facts and circumstances of a
particular case.” Doe, 641 N.E.2d at 507 (citation omitted).

While analysis of an ITED claim is a case-specific endeavor, precedent makes clear that
Ms. Falcone’s IIED claim is unavailing. In this regard, the citations Ms. Falcone offers reveal
the weakness of her position. For example, Ms. Falcone first cites Pierce v. Pawelski, No. 98 C
3337, 2000 WL 1847778 (N.D. Ill. Dec. 14, 2000) (Gottschall, J.). But Pierce did not even
analyze the sufficiency of the IIED claim; instead, it evaluated the defendants’ argument that the

IED claim in that case was time-barred under the applicable statute of limitations. Id. at *3.'4

“4 The defendants in Pierce also appear to have made the argument that the plaintiff's
IIED claim could not be advanced under 42 U.S.C. § 1983. Pierce, 2000 WL 1847778, at *4.
The Court rejected this claim because the plaintiff had not advanced any such claim. See id.
(“[D]efendants are challenging a claim that has not been pled.”). This portion of Pierce has no

23



Falcone maintains that she merely requested a clean mouthpiece. (Ud., Pl. SAF J 18.) At this
point, Officer Carlson decided to arrest Plaintiff. (Def. SF 47.) According to Defendants,
Falcone has admitted that after being told that she was under arrest for DUI, she became
confused and tured away from the officers and toward her running automobile. (/d. 48.) But
Falcone’s testimony is that she was.not placed under arrest until after she had turned and that all
she did was turn to look at her vehicle. (Pl. Resp. 8, Pl. SAF { 18.)

Defendants assert that a struggle ensued and the officers were unable to control Falcone.
(Def. SF J{[ 9, 10.) Falcone denies struggling with the officers or resisting arrest (Pl. Resp. {ff
9,10°), but she was later found guilty of resisting arrest under Illinois law (Def. SF { 18), an.
offense that requires some physical resistance to the arrest as opposed to mere verbal opposition.
See, e.g., Ryan v. County of DuPage, 45 F.3d 1090, 1093 (7th Cir. 1995).

While arresting Falcone, Officer Carlson executed a “leg sweep” maneuver,’ apparently
to bring her to the ground and under control. (Id. 411.) Falcone disputes that she needed to be
brought under control. (PI. Resp. 11, 12.) Falcone was already handcuffed at the time that

Officer Carlson performed the leg sweep, and the officer also slammed Falcone’s face down

3 Defendants state, “A struggled [sic] immediately followed the Plaintiff's decision to
turn away from the Officers and towards her running automobile ....” (Def. SF] 9.) Falcone’s
denial states, “The Plaintiff denies that she struggled with the officers.” (Pl. Resp. 9.) She does
not, however, deny that there was a struggle. Moreover, as stated above, Ms. Falcone was found
guilty beyond a reasonable doubt in the courts of Illinois of resisting arrest, which requires at
least some unlawful physical resistance to the police officer’s efforts to effect the arrest.

4 A “leg sweep,” according to Officer Carlson, consists of putting “one leg in front of the
person, setting on their foot or in front, and you walk them over your leg.” (Pl. SAF { 22.)
Officer Carlson testified that the use-of-force maneuver is appropriate only for “active resisters”
and that he was trained to perform it with the assistance of another trained officer and not alone.
Ud. 9124, 28.) It appears to be undisputed that only Officer Carlson (and not his partner) was
trained in this use-of-force technique, at a time when Carlson previously worked for the Dane
County, Wisconsin, Sheriff's Department as a correctional officer. (Pl. SAF { 29.)

4



in light of Officer Conzemius’s observations of Falcone acting strangely before her arrest. (D.E.
55 at 6.) But Defendants have not pointed to uncontroverted facts that would support summary
judgment in their favor as to Count II. Simply put, regardless of whether Plaintiff is correct that
Herzog controls the outcome of this case (and Plaintiff has not sought summary judgment in her
favor on this claim), Defendants have given the Court no legal or factual basis to grant them
judgment as a matter of law on this count.

As a result, the Court will address only Defendants’ argument that Count {1 should be
dismissed against Officer Kozenczak and Sergeant Ciancio because, in Defendant’s view,
Falcone has presented no evidence against Officer Kozenczak and Sergeant Ciancio to support
her allegation that these officers had her submit to blood and urine tests. Defendants argue that
whether Falcone consented to the tests or not, Sergeant Ciancio and Officer Kozenczak did not
order Officer Conzemius to take Falcone to the hospital for testing. (D.E. 40 at 13.) As
explained below, this argument is unavailing.

The Seventh Circuit teaches that,

[While it is true that a plaintiff must establish a defendant’s personal responsibility for

any claimed deprivation of a constitutional right, a defendant’s direct participation in the

deprivation is not required. See, e.g., Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985).

“An official satisfies the personal responsibility requirement of § 1983 if she acts or fails

to act with a deliberate indifference or reckless disregard of the plaintiffs constitutional

rights.” Crowder y, Lash, 687 F.2d 996, 1005 (7th Cir. 1982). Under this rule, police
officers who have a realistic opportunity to step forward and prevent a fellow officer
from violating a plaintiff's rights through the use of excessive force but fail to do so have

been held liable. See, e.g., Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).

Miller y. Smith, 220 F.3d 491, 495 (7th Cir. 2000) (emphasis in original). This rule has been
applied in the context of false arrest, see Morfin, 349 F.3d at 1001, and Defendants offer no
authority or even argument that the rule should not be applied in this case in the context of an

allegedly unlawful search and seizure. As for putative liability of supervisors, the Seventh

20


precedent included Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993), where
the plaintiff, who was African-American, alleged that he was subjected to a continuous and
intentional campaign of racial discrimination at the hands of her employer which included:
prohibitions against supervising white employees; being forced out of a management position
and reprimanded for no reason; having her vehicle repeatedly damaged and vandalized in the
Tribune private employee parking lot; having Tribune management ignore her concerns about
her property and personal safety; the monitoring of plaintiff's calls with an eavesdropping
device; and improper refusal to allow plaintiff to participate in the Tribune’s Management
Incentive Fund. See Harper, 1998 WL 473427, at *7-8 (reviewing Harriston). Harper noted

“6.

that the Seventh Circuit held that, even under these circumstances, the misconduct alleged ““was
not so severe that a reasonable person could not be expected to endure it, and it did not go
beyond all possible bounds of decency.” Harper 1998 WL 473427, at *7 (quoting Harriston,
992 F.2d at 703).

Harper also reviewed the Seventh Circuit’s decision in Oates v. Discovery Zone, 116
F.3d 1161 (7th Cir. 1997). In that case, the African-American plaintiff alleged that his name was
written underneath a monkey pictured in a photograph of a group of monkeys, which photograph
had been hung in plaintiff’s general work area. Id. at 1164. When the plaintiff complained to
his supervisor that he regarded the photograph as offensive, the supervisor allegedly told

”

plaintiff that “he was being ‘over-sensitive’” and refused to remove it. Jd. Notwithstanding
these offensive actions, the Seventh Circuit “refuse[d] to go so far as to characterize them as
‘truly extreme and outrageous’ or ‘beyond all possible bounds of decency,”” as is required to
advance an IJED claim under Illinois law. /d. at 1174 (internal citations omitted).

In light of the cited precedent, the Court cannot conclude that the alleged misconduct in

26


minimum, as the matter has been briefed to this point, it is clear that summary judgment against
Falcone’s unlawful search and seizure claim would be inappropriate. Defendants’ motion for
summary judgment on Count II is therefore denied.”

Il. Count IV — Intentional Infliction of Emotional Distress

In Count IV, Falcone alleges that Officer Carlson’s and Officer Conzemius’s conduct on
the night of her arrest was “extreme and dangerous,” and that it caused severe emotional distress.
(D.E. §{] 34-36.) Defendants’ motion to dismiss this count is granted.

To state a claim for intentional infliction of emotional distress (“ITED”), Falcone must
establish that: (1) the officers’ conduct was extreme and outrageous; (2) the officers either
intended that their conduct should inflict severe emotional distress, or knew that there was a high
probability that their conduct would cause severe emotional distress; and (3) the officers’
conduct in fact caused severe emotional distress. See Doe v, Calumet City, 641 N.E.2d 498, 506
(IIL. 1994); accord Dunn v. City of Elgin, Illinois, 347 F.3d 641, 651 (7th Cir. 2003).

As the Seventh Circuit and Supreme Court of Illinois have repeatedly instructed, the
standards to prevail on an ITED claim are quite high. The conduct at issue must be both
“extreme and outrageous.” Doe, 641 N.E.2d at 507. “The nature of the defendant’s conduct
must be so extreme as to go beyond all possible bounds of decency and be regarded as

intolerable in a civilized community.” Dunn, 347 F.3d at 651 (internal quotation omitted);

' Defendants make no argument as to why summary judgment is proper on Count V,
which the Seventh Circuit teaches is essentially a provision rendering a municipality an insurer
of its employees under certain circumstances when they are acting within the scope of their
employment. See Wilson v. City of Chicago, 120 F.3d 681, 685 (7th Cir. 1997). At this juncture,
there is no reason for the Court to believe that the officers were acting outside the scope of their
employment (the undisputed facts almost certainly indicate that every officer was so acting), and
Defendants’ motion for summary judgment on Count V is denied.

22



her. Because the charge of resisting arrest is closely related to the other charges and selfsame
arrest that Ms. Falcone disputes, a finding that probable cause existed for the resisting arrest
charge would defeat her false arrest claim. See, e.g., Case, 327 F.3d at 566, 568-69 (rejecting
false arrest claim in case where plaintiff was arrested after single episode for resisting arrest,
disorderly conduct, and assault, after plaintiff was convicted only of resisting arrest), Biddle v.
Martin, 992 F.2d 673, 676 (7th Cir. 1993) (in false arrest action, “probable cause need not have
existed for the charge for which the plaintiff was arrested, so long as probable cause existed for
arrest on a closely related charge”); Harper v. Mega, No. 96 C 1892, 1998 WL 473427, *6 (N.D.
Ill. Aug. 7, 1998) (conviction for resisting arrest defeated wrongful arrest claim concerning
closely related charges of battery and disorderly conduct); see also Penn v. Harris, 296 F.3d 573,
576-77 (7th Cir. 2002) (finding that plaintiff failed to meet the lack-of-probable cause element of
a malicious prosecution claim relating to battery charge that was later dropped, when plaintiff
nonetheless could have been arrested and charged with disorderly conduct for the same episode).
Due to the contemporaneous nature of Falcone’s actions and her arrest and the charges brought
against her that evening, her argument that the resisting arrest charge was an ex post facto
justification for an otherwise unlawful arrest would only square with the events of that evening if
she did not, in fact, resist arrest as found by the criminal factfinder. In addition, the total sum of
evidence against Falcone relating to the resisting arrest charge came from the officers whose
testimony she unsuccessfully challenged in state court. Thus, in order for her to prevail, a trier
of fact necessarily would have to believe her version of events, namely, that she did not in fact

resist arrest. A judgment on that ground would impugn her conviction, and therefore, her false

17


responded overzealously and with too little concern for safety,” the case must go to a jury. Id.
Precedent makes clear that “the doctrine of qualified immunity leaves ‘ample room for mistaken
judgments’ by police officers.” Payne, 337 F.3d at 776 (quoting Malley v. Briggs, 475 U.S. 335,
343 (1986).

Taking the facts in the light most favorable to Falcone, see Saucier, 533 U.S. at 201, the
Court finds that there are material factual disputes and gaps in the factual record as presented by
the parties concerning the propriety of the force used by Officer Carlson. As a result, and as
explained further below, the motion for summary judgment on Count lis denied.

Defendant Officer Carlson’s principal arguments in support of summary judgment are
based on an analytical approach that is inconsistent with Seventh Circuit precedent--namely,
Carlson’s arguments are predicated on the notion that in assessing whether his actions were
objectively reasonable from the perspective of an officer on the scene, the Court must credit
Carlson’s view of disputed factual matters. (In this regard, Carlson repeatedly seeks to rely on
his view of disputed facts—e.g., D.E. 55 (Def. Reply) at 1-2—ranging from whether Carlson
saw Falcone committing pre-stop traffic violations consistent with the actions of an intoxicated
driver, to the idea that Plaintiff was attempting to flee the scene when subjected to physical
force. Accord D.E. 40 at 4 (discussing evidence from perspective of Officer Carlson).) But this
approach—i.e., that the officer’s view of truly disputed factual issues that are material to the
propriety of summary judgment must control—is not sanctioned by Seventh Circuit precedent.
See, e.g., Payne, 337 F.3d at 775 (reversing grant of summary judgment for defendant and
stating, “[t]o determine whether Officer Pauley is entitled to qualified immunity, we must first
ask whether the facts as alleged, taken in the light most favorable to Payne, show that Officer

Pauley violated a constitutional right”).


CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment is granted with
respect to Counts IV and VI, and denied with respect to Counts J, II and V. Count IIf has
previously been dismissed by agreement.

So ordered.

Mb the

Mark Filip
United States Distridt Judge
Northern District of Illinois

Date: -7-O Y

29



As aresult of the arrest and events surrounding it, Falcone alleges that she suffered
severe emotional injuries that required extensive medical treatment for her emotional damage.
(Pl. SAF 7 45.) Plaintiff also alleges that she suffered injuries to her back, shoulder, and neck.
Ca.)

Falcone filed this lawsuit against Defendants alleging: Defendants Conzemius and
Carlson used excessive force during her arrest in violation of the Fourth Amendment (Count I);
Defendants Conzemius, Kozenczak, and Ciancio unlawfully searched her by obtaining blood
and urine samples without any basis for doing so and without her voluntary consent in violation
of the Fourth Amendment (Count Il); Defendant Village of Hanover Park had a practice or
custom that resulted in the violation of various constitutional rights (Count IID); the conduct of
Defendants Conzemius and Carlson constituted intentional infliction of emotional distress
(Count IV); the Village of Hanover Park is liable for the acts committed by Officers Conzemius
and Carlson in the scope of their official duties (Count V); and Officers Conzemius and Carlson
falsely arrested her (Count VJ). (D.E. 57.) The Court granted Falcone’s motion to voluntarily
dismiss Count I against Officer Conzemius and to dismiss Count III. (D.E. 44.) Defendants
have moved for summary judgment on the remaining counts. (D.E. 40.)

SUMMARY JUDGMENT STANDARD

Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The nonmovant cannot rest on the pleadings alone, but
must identify specific facts, see Cornfield y. Consol. High Sch. Dist. No. 230,991 F.2d 1316,
1320 (7th Cir. 1993), that raise more than a scintilla of evidence to show a genuine triable issue

6


onto the trunk of her car during the arrest. (/d., Pl. SAF 4 30.)

Falcone was brought to the Hanover Park police station. (Def. SF § 12.) At the station,
Falcone was able to walk and stand without any problem. (P1. SAF § 32.) She was given a
breathalyzer test by Defendant Officer Kozenczak, and the result was a 0.000 blood alcohol
level. (PI. Resp. ¥ 13.) During the test, Officer Kozenczak attempted to smell an odor of alcohol
on her but did not smell any. (/d., Pl. SAF 4 33.)

Officer Conzemius then decided to take Falcone to the hospital for blood tests. (Def. SF
4,14.) Neither Sergeant Ciancio nor Officer Kozenezak ordered Officer Conzemius to take
Falcone to the hospital (id. {| 15), but Sergeant Ciancio suggested that she do so, and Officer
Kozenczak advised and recommended the same. (Pl. Resp. 15; Pl. SAF {fj 37, 38, 42.)
Sergeant Ciancio knew Falcone’s breathalyzer result was 0.000 and did not inquire into whether
Officer Conzemius had any basis to believe that Falcone was under the influence of anything
other than alcohol. (Pl. SAF { 43.) Defendants assert that Falcone consented to the blood tests.
(Def. SF § 17.) Falcone disputes this by her affidavit testimony that her “consent” was given
only under threats, duress, and coercion from Officer Conzemius’s informing her that a refusal
would result in summary suspension of her driver’s license. (Pl. Resp. 17.) The results of the
blood and urinalysis tests were negative. (Def. SF q 18.)

Plaintiff testified that the officers told her at the scene of the traffic stop that she was
under arrest for DUI and improper lane usage. (Pl. SAF § 44.) Before Falcone was let out on
bond, Officer Conzemius informed her that she was also being charged with resisting arrest and
battery to a police officer. (Jd. | 44.) The DUI and improper-lane-usage charges were dismissed
before trial. (Falcone Dep. at 67:15-22.) Falcone was ultimately convicted of resisting arrest
and acquitted of the battery charge. (Def. SF { 19; Falcone Dep. at 67:23-68-4.)

5


arrest claim is barred by Heck.'° Defendants’ motion for summary judgment on Count VI, the
false arrest claim, is granted."'

B. Count II — Unlawful Search and Seizure Claim

Defendants moved for summary judgment on Count VI (the false arrest claim) and Count

II (the unlawful search and seizure related to the blood and urine tests) together in their briefs.

"° In addition to discussing overruled Illinois caselaw concerning collateral estoppel (PI.
Resp. at 1-2), Falcone attempts to distinguish cases such as Biddle and Penn on the basis that
“none of those cases involves a situation, as here, where the plaintiff was convicted of the
offense, but denied any facts that would have supported probable cause to arrest her for that
offense.” (Pl. Resp. at 3.) This statement merely confirms why Plaintiff's claim is Heck-barred.
Plaintiff was convicted beyond a reasonable doubt, and “if [s]he makes allegations that are
inconsistent with the conviction’s having been valid, Heck kicks in and bars his civil suit.”
Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (collecting cases). Plaintiff also
advances an argument in support of her false arrest claim that is fundamentally predicated on
Williams v. Vazquez, 62 Fed. Appx. 686 (7th Cir. 2003). As the “Fed. Appx.” publication
reference makes very clear, Williams is an unpublished decision of the Seventh Circuit, and its
citation here is expressly prohibited by Seventh Circuit Rule 53, which is specifically referenced
on printed copies of the decision, which copies all state “Not to be cited per Circuit Rule 53.”
Id. Needless to say, Plaintiff's citation of Williams and her argument based upon it are improper
and will not be considered, See, e.g., Retired Chicago Police Ass'n v. City of Chicago, No. 90 C
407, 1994 WL 110170, *2 (N.D. Ill. March 29, 1994) (“party’s] citation of an unpublished
Seventh Circuit opinion . . . is entirely inappropriate. Unpublished orders are clearly marked
‘not to be cited per Circuit Rule 53.’”).

"' Falcone’s argument that she was told when placed in custody that she was being
arrested for illegal lane usage and driving under the influence, but was told later that evening,
upon her release, that she was also being charged with battery and resisting arrest does not
change the outcome. Statements made by an officer at the time of arrest and the officers’ other
subjective beliefs as to the legal basis for the arrest are not generally relevant to judge whether
probable cause existed for arrest. See Richardson v. Bonds, 860 F.2d 1427, 1430 (7th Cir. 1988).
Although Falcone argues that the charge for resisting arrest was merely an ex post facto
extrapolation of the crimes which might have been charged, see id. at 1431, that argument fails,
as described above, because the resisting arrest (which led to the conviction) was part of the
selfsame episode encompassing the other charges. Particularly in light of the conviction for
resisting arrest, Falcone has offered no evidence that the resisting arrest charge was “extravagant
or novel” or “based on ‘stale’ facts that could have formed the basis for an earlier arrest.” Id.
There is simply no reason for the Court to believe this was a case of “arrest now, explain later.”
Id.

18


337 F.3d 767, 775 (7th Cir. 2003) (collecting cases); Morfin v. City of East Chicago, 349 F.3d
989, 1000 n.13 (7th Cir. 2003). Ifa violation could be made out on the undisputed facts taken in
the light most favorable to the plaintiff, the next step “is to ask whether the right was clearly
established.” Jd.

When a claim of excessive force arises in the context of an arrest, the Court evaluates the
officer’s use of force “according to the reasonableness standard of the Fourth Amendment.”
Morfin, 349 F.3d at 1004 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

Determining whether the force used to effect a particular seizure is “reasonable” under

the Fourth Amendment requires a careful balancing of the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake. Our Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory stop necessarily carries with it
the right to use some degree of physical coercion or threat thereof to effect it. Because
the test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application, however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight.
Graham, 349 U.S. at 396 (internal quotation, citation and alteration omitted); see also Morfin,
349 F.3d at 1004. This constitutional inquiry is an objective one, and “it is implemented ‘from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.’” Bell v. Irwin, 321 F.3d 637, 639 (7th Cir. 2003) (quoting Graham, 490 U.S. at 396).
A court is to “balance the amount of force used in relation to the danger posed to the community
or to the arresting officer.” Smith v. City of Chicago, 242 F.3d at 743. Moreover, “when
material facts (or enough of them to justify the conduct objectively) are undisputed,” the

question of the reasonableness of the force is for the Court to decide. Bell, 321 F.3d at 640. If,

however, material facts are in dispute as to whether the police “acted unreasonably because they



As a result, Pierce has limited, if any, relevance here.

Even if Pierce were relevant authority, Falcone merely offers it for the proposition that
an IIED claim can be ““‘based not just on the events occurring on the day of [a plaintiff’s] arrest,
but on defendants’ participation in his wrongful prosecution and their allegedly false testimony
at his trial.”” (Pl. Resp. at 12 (quoting Pierce, at *3). This statement may be true in the abstract;
however, it does not do anything for Ms. Falcone here. The allegations in Pierce included
fabrication of evidence, including the creation of false documents, and false testimony at
Pierce’s trial. Jd. at *1. Even if Pierce could be read for the proposition that these allegations
state a claim for IED (notwithstanding that the decision did not address or analyze the issue),
Falcone has not put forth any evidence to show that her case rises to this level. The Court has
found nothing in the record to support the notion that the Officers fabricated evidence against
her. And Ms. Falcone admits the DUI and improper lane-change charges against her were
dismissed even before trial. (Falcone Dep. at 67:15-22.) As for the two (inextricably related)
charges that did go to trial—battery and forcibly resisting arrest—Ms. Falcone was found guilty
of the resisting arrest charge. (Id. at 67:23-68:4.) This is worlds apart from a situation where a
trial proceeds on the basis of fabricated evidence.

Falcone also relies on Evans y. City of Chicago, No. 00.C 7222, 2001 WL 1028401 (N.D.
Ill. Sept. 6, 2001) (Gettleman, J.), but that case involved a very different set of facts than this
one. Evans held that the plaintiff stated a claim for IED where he alleged that the defendant-
police officers conducted a coordinated three-year campaign of harassment against him that

included, inter alia, a naked strip search and anal search outside of his home; an unwarranted,

relevance to the instant case.

24



> Minute Oiir Form (05/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud, ili Sitting Judge if Oth
noe Magistrate Judge Mark Filip than Assigned Yudge
CASE NUMBER 02 C 8747 : DATE 12/9/2004
CASE Darlene Falcone vs. Village of Hanover Park, et al
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:

(a) o Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) ia} Answer brief to motion due. . Reply to answer briefdue___.

(4) oO Ruling/Hearingon__setfor____at

(5) oO 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__——s set for at__-

(7) oO Trial[set for/re-set for]on__at

(8) a [Bench/Jury trial] [Hearing] held/continued to ___at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CLocal Rule 41.1 CFRCP4I(a)(1) CFRCP41(a)(2). ;

qo) = {Other docket entry] ENTER MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.
Status hearing set for 12/21/05 at 9:30a.m.

ab [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required, a number of notices
Notices mailed by judge’s staff.“ DEC 1 0 200 4
Notified counsel by telephone. DMocices

v | Docketing to mail notices,

Mail AO 450 form. Si : docketing depaly intals

Copy to judge/magistrate judge,

date mailed notice

courtroom
TBK deputy’s
initials

i¢ received in
central Clerk's Office mailing deputy initials



resisting arrest under Illinois law;’ but the crime of resisting arrest only requires some unlawful
physical resistance, see People v. Weathington, 411 N.E.2d 862, 863-864 (Hl. 1980) (holding
that mere argument with police officer does not violate resisting arrest statute but declining to
decide whether activity falling between argument and physical act could violate statute); People
v, Raby, 240 N.E.2d 595, 601 (Ill. 1968) (holding that “going limp” constitutes physical
resistance for purposes of statute), and the parties disagree about whether Plaintiff was doing
anything threatening at the time of her arrest. In addition, one of Plaintiffs statements of fact
and the testimony cited in support of it (Pl. SF | 12) suggest that the officers on the scene were
apprised that she had scoliosis. The Defendants fail to discuss the issue at all. The evaluation of
whether the employment of a particular use-of-force technique on Plaintiff, a $7 year-old
woman, was constitutionally objectionable also likely would be affected by whether Falcone
indicated that she had scoliosis and whether Officer Carlson had any reason to believe or reject
that representation (e.g., did Ms. Falcone appear to visibly suffer from the effects of this
condition when she was standing or moving that night). Given the limited evidence cited on this
issue, and Defendant Carlson’s failure to address it, this factual dispute and reasonable factual
inferences relating to it must be resolved in Falcone’s favor. In essence, this is yet another
factual gap that belies the propriety of summary adjudication on the basis of the papers
submitted.

With respect to the leg sweep takedown, and again, taking the disputed facts most
favorable to Falcone, the evidence shows that such a maneuver (at least according to Plaintiff's

expert) only should be used on an active resister, that the maneuver is designed to be used by

7 See, e.g., Ryan v. Couty of DuPage, 45 F.3d 1090, 1093 (7th Cir. 1995) (discussing
elements of resisting arrest under Illinois law).

11


At least according to Falcone’s evidence (and the Court takes no position, of course, on
whether her version is true), Falcone was not committing any traffic violations before she was
stopped. Although the parties agree that Falcone left her car with the ignition running after
being stopped by the officers, Falcone contends this was at the direction of the officers. (Pl.
Resp. to Defs.’ SF | 4). The parties do not discuss where the field DUI tests thereafter took
place, or even how Falcone performed on them.* Falcone admits that she tumed away from the
officer toward her running vehicle at the conclusion of the tests, but Falcone disputes that she did
anything more than turn to look at her vehicle. (P1. Resp. to Defs.’ SF { 8). And while one
might readily posit circumstances that might prompt an officer to decide that some use of force
was required to take down Falcone before she could return to a running car so as to potentially
pull out onto the road, Defendant Carlson offers no detailed information or review of evidence
concerning subjects such as: how far Falcone was away from her running vehicle; whether
Falcone was rushing or even moving rapidly toward the car; whether there was an officer
between Falcone and the car door, etc.

The parties further dispute the particulars of the events immediately preceding the use of
force in the form of the leg sweep maneuver. We must all agree that Plaintiff must be taken to

have unlawfully offered at least some form of physical resistance, given her conviction for

6 Defendants do not even specifically state that Falcone failed the tests. (See Def. SF 45
(“The Plaintiff performed a series of field sobriety tests.”).) One might infer that Falcone did not
perform well, in that she has offered expert testimony concerning the alleged unreliability of the
tests, but as anyone who has prosecuted or defended a DUI case knows (and as common sense
suggests), there are a broad range of possible results. In the absence of any information about
the actual results, the Court will not speculate whether they provided a reasonable and objective
(albeit mistaken) basis to conclude or suspect that Falcone was intoxicated.

10


of material fact. See Murphy v. ITT Educ. Servs., Inc., 176 F.3d 934, 936 (7th Cir. 1999)
(citation omitted). The Court views the record and all reasonable inferences drawn therefrom in
the light most favorable to the nonmovant. See Fed. R. Civ. P. 56(c); Foley v. City of Lafayette,
359 F.3d 925, 928 (7th Cir. 2004).
DISCUSSION

L Count I — Excessive Force

In Count I, Plaintiff alleges that Officer Carlson’s actions of “physically abusing and
otherwise using unreasonable and unjustifiable force” against her violated her Fourth
Amendment rights and thereby violated 42 U.S.C. § 1983. (D.E. 57 { 22.) Defendants argue
that summary judgment is proper on Count I because Officer Carlson is entitled to qualified
immunity’ “Police officers are entitled to qualified immunity for actions taken during a stop or
arrest insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Smith v. City of Chicago, 242 F.3d
737, 744 (7th Cir. 2001) (internal quotations omitted). In determining whether an officer is
entitled to qualified immunity, “the first inquiry must be whether a constitutional right would
have been violated on the facts alleged.” Saucier v. Katz, 533 U.S. 194, 200 (2001). Ifno
constitutional right has been violated, that is the end of the qualified immunity analysis. See id.
at 201. In making this assessment in the context of summary judgment, Seventh Circuit teaches

that the nonmovant’s version of disputed facts must be taken as true. See, e.g., Payne v. Pauley,

5 Falcone’s Response answers an argument that Defendants did not make regarding
Count I in its motion: the excessive force claim is barred by Heck v. Humphrey, 512 U.S. 47
(1994). (Defendants argued that Counts II and IV are barred by Heck.) Defendants’ Reply
attempts to incorporate the Heck argument as an alternative to qualified immunity, (D.E. 55 at 3,
6-9.) Because it was not argued until the reply brief, however, the Court will consider only
Defendants’ qualified immunity defense as to Count I.

7



Circuit instructs that the question of liability under § 1983 turns on whether a supervisor
“approved, condoned, or turned a blind eye” to the allegedly unconstitutional acts. Jd.

Here, if Falcone is ultimately able to prove that the taking of her blood and/or urine
samples violates her Fourth Amendment rights (which issue the Court need not reach here), she
has come forward with sufficient evidence of Sergeant Ciancio’s and Officer Kozenczak’s
involvement to defeat summary judgment in their favor on Count II. Falcone has put forth
evidence—and Defendants have either admitted the facts for purposes of this motion or had
them deemed admitted by failing to properly object to Falcone’s factual claims—that Officer
Kozenczak, who performed the breath test at the police station, knew that Falcone was not
intoxicated based on her test results. (Pl. SAF §{] 33-36.) Additionally, Kozenczak testified that
during the time he was with Plaintiff, there was nothing about her behavior to indicate’ that she
was under the influence of drugs or any other intoxicant. (Jd. 38.) Officer Kozenczak
allegedly advised and recommended to Officer Conzemius that she take Falcone to have blood or
urine tests. (/d. 38.) Based on this evidence, it is possible that a trier of fact could find that
Officer Kozenczak had a “realistic opportunity to step forward and prevent a fellow officer from
violating [Falcone’s] rights” and failed to do so. Miller, 220 F.3d at 495.

Likewise, Falcone has put forth evidence that Officer Conzemius approached Sergeant
Ciancio to ask his advice about whether to require Falcone to submit to blood and urine testing.
(Zd. | 42.) Ciancio knew that Falcone had recorded a 0.000 on the blood alcohol breath test, and
Ciancio did not inquire as to whether Officer Conzemius had any basis to believe that Falcone
was under the influence of anything other than alcohol. (/d. J 43.) Based on this evidence, it is
possible that a trier of fact could find that Sergeant Ciancio “approved, condoned, or turned a
blind eye” to a violation of Falcone’s rights, if any occurred. Morfin, 349 F.3d at 1001. Ata

21



the instance case, even if true, surpasses the high bar set in the precedent for an IIED claim
under Illinois law. The alleged events occurred as part of a single incident, and there is no
allegation that any of the defendants was stalking Ms. Falcone or engaged in any extended
campaign of harassment against her. Instead, the events were all part of a single broader episode
prompted by the officers’ assignment to enforce prohibitions against drunk driving on a night
when the police force very reasonably assumed (given that it was the evening of a Super Bowl)
that many intoxicated drivers would be creating grave dangers on the roads. See Doe, 641
N.E.2d at 507 (“While all conduct is not immunized, more latitude is given to a defendant
pursuing his legitimate objectives.”). Ms, Falcone alludes to the fact that she was subjected to
blood and urine tests, which if unwarranted were inappropriate and may be actionable, but there
is no evidence whatsoever that these tests were not conducted in a humane manner by medical
professionals. Ms. Falcone also alludes to the leg sweep and the fact that she has scoliosis, but
the leg sweep was a single act (and not part of any relentless or severe beating, even at the hands
of the single officer involved), and Ms. Falcone cannot deny that she was found guilty beyond a
reasonable doubt of having physically resisted arrest from the officer or his partner. It is
possible Ms. Falcone may be able to show that the force was actionably excessive, but it is
nothing near, for example, the campaign of force (and degrading anal examinations and naked
beatings) involved in Evans, supra. See also DuFour-Dowell v. Cogger, 969 F. Supp. 1107,
1123 (N.D. Ill. 1997) (Hart, J.) (“In situations involving unlawful arrests or excessive force by
police officers, there must be more than just a lack of probable cause or some excessive force.
To qualify as extreme and outrageous, the force used must be very extreme or cause very severe
physical injury.”). The Court does not condone any misconduct that Ms. Falcone alleges

occurred—assuming, of course, that her view of events is true, a subject that is clearly disputed.

27


to Defendant’s Statement of Facts (“P]. Resp.”) 1; Pl. SAF { 4). The officers pulled over
Falcone, and Officer Conzemius approached the vehicle. (P]. SAF 5.) She inquired whether
Falcone had been drinking, and Officer Conzemius also stated that Falcone’s eyes were red. (Id.
6.) Falcone denied that she had been drinking. (Ud. 7.) Officer Conzemius asserts that
Falcone ultimately admitted that she had consumed some alcohol that evening. (Def. SF 4 3.)
Falcone denies that she told the officer she had anything to drink (Pl. Resp. { 3), but there is no
dispute that Plaintiff had consumed “a few sips” of alcohol that evening (id. { 2).

Officer Conzemius asked Falcone to get out of her car, which Falcone did, leaving it
running with the driver’s side door open. (Def. SF § 4.) The officer then had Falcone perform a
series of field sobriety tests. (/d. 45.) These tests included the horizontal-gaze nystagmus test,
one-leg stand test, and walk-and-turn test. (Pl. SAF {ff 9, 11, 13.) Falcone submitted
uncontroverted testimony by her proposed DUI expert that the manner by which each of these
tests was conducted was contrary to accepted protocol in at least some respects. (Jd. fj 10, 12,
14.) For example, the results of the one-leg stand test and walk-and-turn test were unreliable
because Falcone was wearing two-inch heels and had a medical condition (scoliosis). (Jd. {4 12,
14.) Officer Carlson performed a finger-to-nose test on Falcone. (Jd. § 15.) Falcone’s proposed
expert testified that Officer Carlson, too, failed to observe the accepted protocol concerning this
test, in that Ms. Falcone was asked to tip her head back during the test (an outdated technique, in
the expert’s view, as opposed to having the test-taker look forward). (/d. § 16; Hanson Dep. at
39:8-41:17.)

After the field sobriety tests, Officer Carlson offered Falcone the opportunity to take a
portable breathalyzer test (“PBT”). (P]. SAF 4 17.) Defendants assert that Falcone initially
refused to blow into the PBT unit (Def. SF { 6), but Falcone denies this (PI. Resp. ¥ 6). Rather,

3


Supp. 2d 943, 950-52 (N.D. Ill. 2002) (refusing to summarily dismiss leg sweep case with
disputed material facts). Defendant’s motion is denied with respect to Count I.
I. Counts II & VI - Unreasonable Search & Seizure and False Arrest

In Count II, Falcone alleges that Officers Conzemius and Kozenczak and Sergeant
Ciancio violated her Fourth Amendment right to be free from unreasonable searches and seizures
by taking blood and urine samples from her without any basis to do so, or by not intervening to
stop such searches and seizures when they had a duty to do so. (D.E. 57 25.) In Count VI,
Falcone alleges that Officers Conzemius and Carlson falsely arrested and charged her with
battery, DUI, and improper lane use, even though they lacked probable cause to do so. (Id. {/ 41-
42.) Defendants argue that these claims are precluded under Heck v. Humphrey, 512 U.S. 477
(1994). Alternatively, Defendants argue that Officers Conzemius and Kozenczak had probable
cause to arrest Falcone, and that Plaintiff has put forward no evidence to support any allegations
against Officer Kozenczak and Sergeant Ciancio.

A. Count VI - False Arrest and Heck v. Humphrey

Falcone may not bring a claim under Section 1983 if a judgment in her favor would
“necessarily imply the invalidity” of her conviction for resisting arrest. Heck, 512 U.S. at 487.
Defendants argue that Falcone’s claims of false arrest (and also unreasonable search and seizure)
are barred by Heck because Plaintiff has been convicted.

Defendants rely on Case v. Milewski, 327 F.3d 564 (7th Cir. 2003), for the proposition
that Heck bars a Fourth Amendment claim for false arrest where the plaintiff has been convicted
of a crime stemming from that arrest. While agreeing with Defendants that the Seventh Circuit
held that the plaintiffs claim for unlawful arrest was barred by Heck in that case, id. at 568-69,
(and agreeing further, as explained below, that Falcone’s false arrest claim is barred in this case

14



actual existence of probable cause defeats a Section 1983 claim for false arrest. See Morfin v.
City of East Chicago, 349 F.3d 989, 997 (7th Cir. 2003). Thus, in order for her to prevail, she
would have to convince a trier of fact that no probable cause existed for her arrest.

In Falcone’s Complaint, she does not argue that her arrest for resisting arrest was made
without probable cause. This omission is understandable, given her conviction beyond a
reasonable doubt for resisting a peace officer. In her Response to Defendants’ argument as to
the existence of probable cause for her arrest, however, Falcone sets forth her theory why
summary judgment is improper on her false arrest claim due to lack of probable cause for her
arrest. First, Falcone argues that she has consistently “flatly denie[d] that she resisted arrest”
(D.E. 47 at 2), and that under Illinois law she cannot be precluded from arguing the same in her
civil suit. Second, Falcone argues that the resisting arrest charge was merely an ex post facto
justification for her allegedly unlawful arrest for driving under the influence and improper lane
usage. (Id. at 4.)

The first prong of this theory is fundamentally flawed because it relies on overruled
Illinois law concerning the collateral estoppel effect of a criminal conviction in subsequent civil
litigation. See note 9, supra. Moreover, Falcone’s theory ultimately would require a trier of fact
to find that there was no probable cause for Ms. Falcone’s charge for resisting arrest (and
subsequent conviction thereof). Her act of resisting arrest occurred as part of the single,

integrated roadside episode on the evening of February 3, 2002, that led to the charges against

impeded the efficient and sensible resolution of the summary judgment motion. The pace of
justice for all litigants is harmed by parties who invite detours based on caselaw that has been
overruled, caselaw that cannot be cited under a well-settled rule of the Seventh Circuit, and
incomplete factual presentations. In any event, the effect of state collateral estoppel law is a
separate and distinct question from whether a federal claim is barred under Heck.

16


BACKGROUND!

Plaintiff Falcone, a 57-year-old woman, was driving home from a Super Bowl party on
February 3, 2002. (D.E. 48, Plaintiffs Statement of Additional Facts (“P1. SAF”) ¥ 1.) That
night, Defendants Officers Carlson and Conzemius were on “saturation patrol,” the goal of
which was DUI enforcement. (/d. § 2.) Defendants assert that the officers observed Falcone
swerve over the fog line several times (D.E. 40, Defendant’s Statement of Facts (“Def. SF”) J

1’), but Plaintiff disputes that she committed any traffic violations (D.E. 48, Plaintiff's Response

' The relevant facts are taken from the Defendants’ Local Rule 56.1 (“L.R. 56.1”)
statement of facts and exhibits (D.E. 40) and from Falcone’s response to Defendants’ statement
of facts and additional facts (D.E. 48). Where the parties disagree over relevant facts, the Court
sets forth the competing versions. In addition, the Court, as it must, resolves genuine factual
ambiguities in Plaintiff's favor. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).
L.R. 56.1 requires that statements of facts contain allegations of material fact, and the factual
allegations must be supported by admissible record evidence. See L.R. 56.1; Malee v. Sanford,
191 F.R.D. 581, 583-85 (N.D. Ill. 2000). The Seventh Circuit has “consistently and repeatedly
upheld a district court’s discretion to require strict compliance” with L.R. 56.1. Bordelon v.
Chicago Sch. Reform Bd. Of Trs., 233 F.3d 524, 527 (7th Cir. 2000). The Court notes that
Defendants in particular have improperly denied a number of Falcone’s factual assertions by
failing to explain why the proffered evidence is inadequate or objectionable. Thus, where those
factual assertions are properly supported by the record, the Court deems them admitted by
Defendant for purposes of this motion. See Malec, 191 F.R.D. at 584. The Court deems the
following statements of fact admitted for purposes of this motion: Plaintiff's Statement of
Additional Facts (“Pl. SAF”) 4] 6, 8, 12, 15, 16, 18, 19, 24, 30, 37, 38, 39, 44, 45, 46. In
addition, on at least two occasions (see Pl. SAF {{ 31, 41), Plaintiff failed to sufficiently identify
the record citations which may support her statement of fact—suggesting, for example, that
entire depositions, or nearly forty page chunks thereof, support Plaintiff’s factual claims. This
practice, too, is inappropriate under local rules and caselaw applying it. See, e.g., Malec, 191
F.R.D. at 583 (“specific reference” means page and paragraph numbers). It is not the job of the
Court to scour through entire depositions, or 40 page pieces thereof, to attempt to determine if a
litigant’s factual claims are well-taken; in fact, doing so would delay the adjudication of motions
and cases involving litigants who have actually complied with well-settled local rules designed
to facilitate reasonably prompt adjudication of cases for everyone. As a result, the Court also
does not consider Plaintiff's improperly supported factual assertions.

? Defendants did not number their statements of fact in accordance with L.R. 56.1. The
Court will use the numbering provided by Plaintiff for those statements.

2


guns-drawn, home invasion of plaintiffs residence; multiple instances of fabricated testimony
and arrests in felony narcotics cases; another naked beating, strip search, and anal search at the
11th District Chicago Police Station; and an episode of being paraded through the 11th District
Station where officers were told they could arrest him on sight at any time in retaliation for
plaintiff's stepping forward as a witness against two Chicago Police Officers who allegedly
caused the wrongful death of another citizen. See id. at *13. As Defendants in the instant case
rightly argue, the Court need not dwell long on Evans to conclude that the events as alleged by
Falcone, let alone the evidence she has put forward at this juncture, do not remotely compare
with the multi-year, dozen-plus-episode campaign of severe physical and emotional abuse
alleged in Evans. While the Court does not treat lightly the injuries suffered by Falcone during
her arrest, the events relating to her arrest and prosecution cannot fairly be analogized to
anything approaching those in Evans.

Other caselaw makes clear that Ms. Falcone’s IIED claim should be dismissed. For
example, Harper v. Mega, No. 96 C 1892, 1998 WL 473427 (N.D, Ill. Aug. 7, 1998) (Manning,
J.), dismissed an ITED claim against a plaintiff who alleged that he was subjected to repeated
instances of virulent racist comments by Chicago Police Officers (including taunts of “nigger”
and “monkey”) before and after his disorderly conduct and battery arrest, that he was wrongfully
subjected to battery and punching and being thrown against a wall in connection with his arrest,
and that Chicago Police Officers located plaintiff while he was ina holding cell at the Cook
County Jail awaiting sentencing and falsely shouted that plaintiff was a “child molester” and
“cop killer” so that other inmates and correctional officers would hear the false information. Jd.,
at *1. The court reviewed Seventh Circuit precedent and found that the allegations in Harper
were not such that they transcended all possible bounds of human decency. Jd. at *7-8. This

25


aX

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

DARLENE FALCONE,
Plaintiff,

Vv.

Case No. 02 C 8747 DOCKETED

VILLAGE OF HANOVER PARK, . Judge Mark Filip DEC 19 2004
LAURA CONZEMIUS,

TODD CARLSON,
MICHAEL KOZENCZAK

and SGT. JOSEPH CIANCIO

Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Darlene Falcone (“Plaintiff’ or “Falcone”) brings this action against the Village
of Hanover Park (“the Village”), and Officers Laura Conzemius, Todd Carlson, and Michael
Kozenczak and Sergeant Joseph Ciancio, all of the Hanover Village Police Department
(collectively “Defendants”). Plaintiff alleges that Defendants committed various violations of
her constitutional rights during her arrest for driving under the influence of alcohol (“DUI”) and
resisting arrest, the latter of which charges she was convicted of in a criminal trial in the courts
of the State of Illinois. Specifically, Ms. Falcone alleges excessive force, unreasonable search
and seizure, intentional infliction of emotional distress, and false arrest. Defendants have moved
for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56. As

explained below, Defendants’ motion is granted in part and denied in part.



But, with respect to the conduct alleged, it is not “so outrageous in character and so extreme in
degree, as to go beyond all possible bounds of decency.” Van Stan, 125 F.3d at 567.

In addition, and alternatively, even if the Court were to find that the alleged misconduct
was so extreme and outrageous as to be actionable under Illinois law, Ms. Falcone has put forth
no evidence that the officers intended to inflict emotional harm on her or should have known that
there was a high probability that their actions would result in such. Compare Doe, 641 N.E.2d at
508 (in light of plaintiff's complaint to officer of recent assault on her and threat to her children,
officer should have known there was a high probability that his conduct would cause severe
emotional distress when he dismissed plaintiff's pleas to help her children who were being
sexually assaulted). There is nothing in the record to suggest that a reasonable trier of fact
would conclude that the officers, who were generally performing their duties to quell a resisting
citizen and investigate a suspected DUI, intended to cause Falcone emotional distress or
disregarded a high probability of the same. Thus, Defendants’ motion for summary judgment on

Count IV is granted.

28


two police officers and not one, and that even if the maneuver worked well, Plaintiff likely
would be forced face-first to the ground or pavement. (E.g., Pl. SAF 4] 23-24). It is undisputed
that while Officer Carlson was trained in the use of the leg-sweep maneuver, back when he
worked as a jailer for the Dane County, Wisconsin, Sheriff's Office (P!. SAF { 29), his colleague
on the scene, Officer Conzemius, was not trained in the technique, and it appears that the
technique is not generally employed by the Hanover Park police. (Pl. SAF 4] 25, 29.) Lastly,
although it would likely not be material standing alone, the parties also disagree about whether
Falcone’s face was slammed against the hood of the car during the arrest.

Given this myriad of factual disputes and gaps in the factual record as presented, the
Court finds that Defendant Carlson has failed to carry his burden of showing that summary
dismissal of Count lis appropriate. See Morfin, 349 F.3d at 1005 (‘If a jury were to credit Mr.
Morfin’s version of events over that of the arresting officers, it could conclude that there was no
reason for the officers to exert such force on Mr. Morfin.”) In this regard, the Court notes that
Carlson makes no meaningful argument that he lacked notice that a use of such force, taking
circumstances as framed by interpreting the factual disputes and gaps in the record in Falcone’s
favor, would be prohibited under the law. See generally Payne, 337 F.3d at 775-76.

The Court also briefly notes that Defendant’s legal citations are not controlling on the

® These factual gaps and conflicts likewise render summary judgment inappropriate
under the multi-factor test identified by Officer Carlson. See D.E. 40 at 4. There is no evidence,
taking Falcone’s view of things, that she was in fact a drunken driver, bearing on the severity of
any crime at issue and any danger Falcone might pose to herself or others. Similarly, there are
factual gaps about whether, even if Falcone were drunk, she presented any meaningful risk of
getting back to her car before the officers could simply grab her (a fifty-seven year old woman)
by the shoulders or waist. There also are factual disputes concerning what degree of physical
resistence Falcone used in resisting arrest and whether she in fact was attempting to evade the
scene. Taken together, these factual disputes render summary judgment inappropriate.

12


under Heck), the Court respectfully declines to read Case as implementing a categorical rule that
any and all claims for unlawful arrest are barred by a subsequent criminal conviction that stems
from that arrest. The Seventh Circuit, before Case and after, has consistently held that whether a
conviction precludes an unlawful arrest claim is a question to be determined by examining the
facts in the particular case at hand. See, e.g., Wiley v. City of Chicago, 361 F.3d 994, 997 (7th
Cir. 2004) (“[A] wrongful arrest claim does not necessarily undermine a conviction”); Booker v.
Ward, 94 F.3d 1052, 1056 (1996) (“[A] wrongful arrest claim . . . does not inevitably undermine
a conviction; one can have a successful wrongful arrest claim and still have a perfectly valid
conviction.”); see also Okoro y. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (teaching that
whether a plaintiff's claim is Heck-barred should not be evaluated by seeing if there is a
“theoretical possibility” that plaintiff can advance a theory of liability that does not undermine
the legitimacy of her criminal conviction, but rather should be evaluated by seeing whether
plaintiffs theory includes “allegations that are inconsistent with the conviction’s having been
valid”; if the latter, “Heck kicks in and bars his civil suit.”).

Nonetheless, Defendants correctly argue that for Falcone to succeed on her false arrest

claim, it would necessarily impugn the validity of her conviction on the facts of this case? The

° Defendants point out in their Reply brief that Plaintiff's Response is non-responsive to
the Heck argument. Plaintiff's brief assiduously ignores the Supreme Court’s teaching in Heck
v. Humphrey, 512 U.S. 477 (1994), and instead makes an extended argument about Illinois
collateral estoppel law that is fundamentally predicated on Illinois precedent that was overruled
in material part by the Illinois Supreme Court in 2000. See Pl. Resp. at 2-3 (repeatedly citing
Thornton vy. Paul, 384 N.E.2d 335, 343 (Ill. 1978), and precedent applying it); see also American
Family Mutual Ins. Co. v. Savickas, 739 N.E.2d 445, 450 (Ill. 2000) (“[W]e overrule . . . that
portion of Thornton regarding the effect of a prior conviction in a subsequent civil case.”). To
be sure, each one of us (this Court certainly included) makes mistakes. But Ms. Falcone’s
extended reliance on long-overruled Illinois law, combined with her extensive and wholly
improper reliance on unpublished Seventh Circuit authority (discussed further below) and her
failure to include complete copies of the deposition material she cited in her factual statements,

15