1023 (quoting Jenco v. City of Chicago, 286 F.3d 994, 999 (7th Cir. 2002)). This requires a
showing that the withheld information was material, in that there is a reasonable probability that
it could have affected the outcome of the trial. Jd. (citing United States v. Bagley, 473 U.S. 667,
682 (1985)). Carroccia’s acquittal, the Court ruled, does not bar him from bringing a claim; the
question of whether withheld information could affect the trial’s outcome must be examined as
of the time of the alleged concealment rather than in hindsight. /d. at 1024.

The Court has searched Carroccia’s responsive memorandum in vain for anything
supporting his claim that material exculpatory information was withheld from prosecutors or
from Carroccia’s defense. His argument on this claim consists of two sentences: “The
defendants also contend that [Brady v. Maryland] was respected because there is no evidence that
they knew any witnesses provided false statements or that they knowingly misled prosecutors.
The record, however, is to the contrary; at least fact questions remain for resolution by the fact
finder.” Pltf. Summ. Judg. Resp. at 10. This is not a particularly helpful argument without some
elaboration.

Looking at the remainder of Carroccia’s memorandum, only two points are suggestive of
a claim of concealment of information favorable to Carroccia from prosecutors. The first is the
previously referenced statement by Norma Sears suggesting that someone in the Hampshire
Police Department might be responsible for her husband’s death. But as discussed above,
Carroccia offers nothing to suggest that Norma was voicing anything other than her own.
speculation or that she had any real information pointing to anyone in particular. The second
matter noted by Carroccia concerns Rogula. Carroccia argues near the end of his memorandum

that “fact questions exist as to whether Rogula was fed the information that produced Carroccia’s

13


Norma’s residence and again spoke to her. She told Bumgarner that she thought Carroccia had
killed her husband, reporting that they had been good friends but had a falling out, and that Sears
had been trying to avoid Carroccia.!

On the morning of June 2, at Anderson’s direction, Bumgarner photographed vehicles in
and around Carroccia’s residence in Rockford.

Around 11:30 a.m. on June 2, officer Malloy spoke to Bumgarner. Malloy stated that
Sears and Carroccia knew each other. He also reported that on an earlier occasion, he had
stopped Carroccia after seeing him drive erratically but had not given him a citation. Carroccia
had asked for Sears during the stop. Malloy also reported that at Sears’ request, he and Sears had
switched patrol areas and that Sears had been trying to avoid Carroccia?

On the afternoon of June 2, at Anderson’s direction, Bumgarner and other Kane County
officers went to two businesses in the area of the crime scene to interview employees who had
been working at the apparent time of the murder. Bumgarner interviewed, among others,
defendant John Rogula, who reported that on the evening of June 1, he had been working near
the open doors of the loading dock of Poli-Film, He stated that during a break around 8:30 p.m.,
he saw a Hampshire squad car parked on Tang Boulevard, and shortly thereafter he saw an older

model, maroon-colored, full-sized van drive up to the squad car and park behind it. He heard

' The Court disagrees with the suggestion of plaintiff's counsel that “falling out” is an
archaic expression. Among other things, a search of Westlaw’s “ALLFEDS” data base
conducted on August 10, 2004 for any references to “falling out” in federal court decisions since
January 1, 1990 produced 584 references. The expression is a common one in current usage.

? Carroccia objects that this and a number of other statements in defendants’ Local Rule
56.1 submissions are hearsay. The Court disagrees; generally speaking, these statements are not
offered for their truth but rather to show what information the officers had at the time of
Carroccia’s arrest.


level of “extreme and outrageous” conduct required to support a claim under Illinois law for
intentional infliction of emotional distress. See, e.g., McGrath y. Fahey, 126 Ill. 2d 78, 86, 533
N.E.2d 806, 809 (1989) (identifying elements of claim for intentional infliction of emotional
distress).
8. Claims against Kane County and Village of Hampshire

Because Carroccia has failed to support his claims that his constitutional rights were
violated, he cannot maintain a claim under § 1983 against either Kane County or the Village of
Hampshire.* City of Los Angeles y. Heller, 475 U.S. 796, 799 (1986) (per curiam), The Court’s
determination that Carroccia has failed to support his state tort claims is likewise fatal to his
claims against the municipal entities under state law for their employees’ alleged torts.
9. Claims against Rogula

Rogula has filed a separate motion for summary judgment. Carroccia does not address
that motion separately in his memorandum. He has provided no basis for a § 1983 claim against
Rogula, a private citizen, which would require evidence from which a jury could conclude that he
had conspired or acted in concert with a governmental actor to violate Carroccia’s constitutional
rights. See, e.g., Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Williams v. Seniff, 342 F.3d 774,
785 (7th Cir. 2003). He likewise has provided no basis for maintaining a state law claim against
Rogula, which as best as the Court can tell would require evidence from which a reasonable jury

could conclude that he had knowingly fabricated information. Rogula is entitled to summary

* Carroccia conceivably could show that officers other than the individual defendants
violated his Fourth Amendment rights in executing the search warrant at his home. But he offers
no evidence that this was done pursuant to a policy or custom of either Kane County or the
Village of Hampshire, as is required to establish a claim against a municipal entity under § 1983.
See generally Monell v. Dep't of Social Services of City of New York, 336 U.S. 658, 694 (1978).

7


1998), entitling the defendants to qualified immunity.

Carroccia make several arguments on the probable cause issue, none of which have merit.
First, he says that the crime scene could have been interpreted to suggest that Carroccia had been
surprised by his assailant, and not necessarily that he knew the assailant. That misses the point.
Probable cause does not require proof beyond a reasonable doubt, or even by a preponderance of
the evidence. See Braun v. Baldwin, 346 F.3d 761, 766 (7th Cir. 2003). The question with
regard to the crime scene is not whether other inferences might have been drawn, but rather
whether the inference the officers drew was a reasonable one. It was.

Second, Carroccia says that Norma Sears identified others, including Malloy and other
police officers, as possible assailants. In finding that probable cause existed, the Court has not
relied on Norma’s claim that Carroccia might be the killer, That aside, the fact that she also
named others does not undercut the probable cause showing regarding Carroccia. Carroccia
offers nothing to suggest that Norma had, or gave the officers, information actually pointing to
the involvement of any other person, or that the officers had any indication that she was doing
anything other than speculating. But in any event, of the people Norma referenced, the police
had information arguably tying Carroccia (but not others) to the crime — namely the reports of
Rogula, Gossett, and Thompson. Though the defendants do not appear to have pursued the
possibility that other police officers might have been involved in Sears’ murder, the Fourth
Amendment does not require the police to pursue all investigative possibilities to establish
probable cause. See Carroccia, 249 F. Supp. 2d at 1025 (citing Gramenos v. Jewel Cos., 797
F.2d 432, 442 (7th Cir. 1986)).

Carroccia contends that Bumgarner concealed Norma’s claim that other officers might


parties’ submissions whether Carroccia contends he was referring to a single .38 caliber gun or
two different guns). Carroccia also stated that he was a friend of Marilyn Vogelman, apparently
Sears’ long-time girlfriend before his marriage to Norma, and that Sears had “hid (Vogelman]
away” during their relationship and prevented other people from getting to know her, Anderson
asked Carroccia how he would explain it if testing showed gunshot residue on his hands.
Carroccia stated that if that were so, he likely had picked it up from handling some shells the
previous night or from a friend’s business where there was gunpowder and chemicals, but that he
had not fired a gun recently. Sears also gave an account of his whereabouts on the night of June
1,

On the evening of June 2, Kane County Assistant State’s Attorney Joseph Cullen arrived
at the Sheriffs Office and began to gather information about the case. He was told by
investigators that Sears was shot three times in the head; it appeared from the crime scene that he
knew his assailant; several witnesses heard shots and saw a vehicle; Rogula appeared to have
seen more than the others and described a white man, between 5'7” and 5'9” tall and between 170
and 190 pounds with curly brown hair; Rogula identified Carroccia’s van as the vehicle he had
seen, Norma Sears stated that her husband and Carroccia were friends but had a falling out; and
Malloy reported Sears saying that he was trying to avoid Carroccia. Anderson and Atchison
reported to Cullen regarding their interview of Carroccia. Cullen also interviewed Carroccia and
concluded that he met the description provided by Rogula. Cullen authorized the filing ofa
murder charge.

Assisted by Cullen, Bumgarner prepared an affidavit in support of a request for a warrant

to search Carroccia’s home. There is no evidence that Atchison, Malloy, or Anderson had any


three gun shots and saw a man return to the driver’s side of the van, get in, and drive away. He
described the man as 5'9” to 5'10" tall and weighing 170 to 190 pounds, with bushy dark hair,
wearing dark clothes, blue jeans, and a t-shirt. Rogula gave a tape-recorded statement at the
Kane County Sheriff's Office, where he was shown the photographs of vehicles that Bumgarner
had taken near Carroccia’s home, without being told what they were. Rogula identified a van
belonging to Carroccia as the vehicle he had seen. No promises were made and no benefits were
offered to Rogula by the defendants in connection with his statements, and no suggestions were
made to him about what he should say. Rogula was not interviewed by either Atchison or
Malloy.

Anderson ran a driver’s license check on Carroccia and learned that his license stated that
he was 5'8" tall and weighed 165 pounds. After Bumgarner reported to Anderson regarding his
interview of Rogula, Anderson made the decision to arrest Carroccia, He was taken into custody
around 6:30 p.m. on June 2 and was transported to the Kane County Sheriffs Office. It is
undisputed that on that date, Carroccia was 5'8" tall, weighed 195 pounds, and had bushy dark
hair.

Anderson and Atchison interviewed Carroccia at the Sheriff's Office. Carroccia denied
killing Sears. He denied that he had been at the crime scene but stated that he was familiar with
the location and had been there with Sears before. He reported that he owned a number of guns,
including a .38 Smith and Wesson revolver, and a gun he described as a “wheel gun,” a 38

revolver that with a cylinder that rotates like a wheel (it is not entirely clear to the Court from the

> There is evidence that several days later, Rogula told Floyd Thompson that he had
provided information about the murder to “Crime Stoppers” and was going to get a reward,
However, Carroccia has offered no evidence that the defendants were aware of this.

5


judgment.
Conclusion
For the reasons stated above, the Court grants the defendants’ motions for summary
judgment (docket # 68-1, 73-1, 80-1]. The Clerk is directed to enter judgment in favor of the

defendants. The trial date of November 1, 2004 is vacated.

MATTHEW F. KENNELLY

United States District Judge
Date: August 24, 2004

18


Discussion
1. Count 1 - Fourth Amendment claim concerning Carroccia’s arrest!

The defendants argue that probable cause existed to arrest Carroccia. The issue is
whether, at the time of the arrest, the reasonably trustworthy information known to the officers
was sufficient for a reasonable person to believe that Carroccia had killed Sears, E.g., Hunter v.
Bryant, 502 U.S. 224, 228 (1991).

Based on the facts Carroccia concedes were known to the defendants, probable cause
plainly existed. The crime scene suggested that Sears knew his killer and was not investigating
anything suspicious at the time of the murder. Carroccia knew Sears. Norma Sears reported that
Carroccia and Sears had a falling out, and defendant Malloy reported that Sears had been trying
to avoid Carroccia. Witnesses whom the police had no reason to disbelieve reported hearing
three gunshots and seeing a van drive away that one of them identified as Carroccia’s van and
that at least generally matched descriptions given by the others. One of those witnesses reported
seeing the person who, it was reasonable to believe, had killed Sears, and he gave a description
that generally matched Carroccia. This information, the defendants’ knowledge of which is
undisputed by Carroccia, was sufficient to establish probable cause as a matter of law, see, e.g.,
United States v. Tilmon, 19 F.3d 1221, 1228-29 (7th Cir. 1994); no reasonable jury could find
otherwise. Even if somehow insufficient to establish probable cause, this evidence at least

established “arguable probable cause,” see Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir.

* Carroccia’s Fourth Amendment claim against the officers necessarily is confined to the
legality of his arrest; the Seventh Circuit has held that malicious prosecution ~ the making of a
false charge in court — does not give rise to a claim of a federal constitutional deprivation. See
Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).

8


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

soamotavienel | Matthew F. Kennelly Sting sud
Judge Assigned Judge
CASE NUMBER 02 C 3916 DATE 8/24/2004
CASE Carroccia vs. Michael Anderson
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly

MOTION: the nature of the motion being presented}

DOCKET ENTRY:

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

Q) oO Brief in support of motion due

Q) Q Answer brief to motion due. . Reply to answer brief due__

(4) Qa Ruling/Hearingon_____ssetffor___att

(5) im Status hearing[held/continued to] (set for/re-set for] on setfor_____at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__—sat_

(7) a) Triai{set for/re-set forjon at.

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

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

COFRCP4(m) Local Rule 41.1 COFRCP41(a)(1) OO FRCP41(a)(2).

(10) WM [Otherdocket entry] For the reasons set forth on the attached Memorandum Opinion and Order, the
Court grants the defendants’ motion for summary judgment (68-1, 80-1). The Clerk of Court is directed to
enter judgment in favor of the defendants. The trial date of 11/1/04 is vacated.

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

No notices required, advised in open court. Document
No notices required. vmber etvates Number
Notices mailed by judge’s staff. ,
Notified counsel by telephone. RUG 262 008

Y | Docketing to mail notices.
Mail AO 450 form.
Copy to judge/magistrate judge.

courtroom
deputy's
initials

OR

Date/time received in
central Clerk’s Office

uraiing deputy initials



Cortese, 196 F.3d 717, 724-25 (7th Cir. 1999).

Finally, Carroccia says that the defendants rushed to judgment, charging him based on
incomplete information when a more thoughtful and thorough process might have led to a
different result. He says that more could have and should have been done to follow up on other
persons he identifies as possible suspects, including Norma Sears, Marilyn Vogelman, officer
Malloy, or other Hampshire officers. Perhaps so, but as indicated above, the officers’ failure to
pursue other leads in no way diminishes the showing of probable cause that supported the arrest
of Carroccia.

For these reasons, the defendants are entitled to summary judgment on Count 1.

2. Count 2 - Fourth Amendment claim regarding search of home

With regard to the search, it is undisputed that none of the defendant officers had
anything to do with the manner in which the warrant was carried out, specifically the decision to
kick in a door to Carroccia’s home. The element of personal involvement that is a prerequisite to
liability under § 1983 is lacking as to each of the individual defendants regarding this claim. See,
e.g., Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986) (§ 1983 liability depends on
defendant’s personal involvement in constitutional violation); Gentry v. Duckworth, 65 F.3d 555,
561 (7th Cir. 1995) (personal responsibility requires participation or direction, or at least
knowledge and consent). Carroccia argues that the defendants had his house keys and should
have given them to the officers, Assuming this is true, the defendants may well have been
negligent, but these facts do not support a claim of liability under § 1983 for violation of the
Fourth Amendment.

Carroccia alleges that Bumgarner’s affidavit that was used to obtain the search warrant

11


have been responsible for her husband’s murder. The evidence in fact suggests that Bumgarner
did not report to his colleagues or prosecutors that Norma had made this claim, But because
Carroccia has offered no evidence that Norma was doing anything other than speculating,
Bumgarner’s nondisclosure of this information is of no consequence in determining whether
probable cause to arrest and charge Carroccia existed. Carroccia has offered no evidence that
Bumgarner or the other defendants shaded any of the other information they obtained, tried to
influence witnesses, or concealed any material information in order to divert focus from fellow
officers or onto Carroccia.

Next, Carroccia points out that there were discrepancies between the witnesses’
descriptions of the vehicle they had seen. Variances in descriptions given by eyewitnesses are
common. In this case, none of the other witnesses’ descriptions as conveyed to the defendant
officers undercut Rogula’s positive identification of Carroccia’s vehicle as the one he had seen.

Carroccia also argues that the police should have done more to check Rogula’s veracity
before relying on his statements. He says that if they had done so, they would have learned that
Rogula had a questionable reputation for truthfulness, a history of involvement in criminal
activity, and a belief that he would get a reward for providing information. But Carroccia has no
evidence that the defendants had any of this information at the time of his arrest or the imposition
of charges, or that anything in Rogula’s statements or demeanor at his interviews should have
caused them to doubt his credibility. Absent something along these lines, or some flaw in what
Rogula reported that was apparent to the defendants, they were not required to take steps to
corroborate his statements before relying on them to establish probable cause. See, e.g.,

Pasiewicz v. Lake County Forest Preserve Dist., 270 F.3d 520, 524-25 (7th Cir. 2001); Spiegel v.

10


involvement in this process, The affidavit contained an error; it identified Floyd Thompson
rather than John Rogula as one of the two witnesses who had seen “a full size van” in the area of
the police car. Dfdt, Ex. JJ, 912. At 12:15 a.m, on June 3, a Kane County judge issued the
requested warrant, and Kane County officers executed the warrant around 1:00 a.m.

Anderson assigned a Kane County detective, Sergeant Chris Peeler, to execute the
warrant. The Sheriff's police gained entry into Carroccia’s house by kicking in a door, a decision
made by Peeler. Neither Anderson, Bumgarner, Anderson, nor Malloy participated in or
supervised the execution of the warrant, and none of them gave any instructions or had anything
to do with the manner of entry. The police recovered approximately fifty firearms, none of which
was a .38 caliber gun, though they did recover some .38 caliber ammunition. They also
recovered three pairs of blue jeans and three t-shirts that were hanging up to dry but were still
wet, suggesting they had been washed recently. The police also found a card sent to Carroccia by
Marilyn Vogelman that made reference to the fact that they had “been cheated out of friendship
time.” Dfdt. Ex. MM.

On June 16, 2000, the Illinois State Police Crime Laboratory reported that the bullet
fragments recovered from Sears’ body were .38 class ammunition. During the month of June,
investigators checked out Carroccia’s alibi and obtained information that, they believed,
suggested that some of the information he had given was incorrect.

As noted earlier, Carroccia was acquitted by a jury at trial.


was rolled down, the car was still running, the lights were not activated, Sears’ flashlight was
still in its cradle, his weapon was still holstered, his portable radio was turned off, and there were
no entries in the log book that Sears maintained while on duty. Based on these observations and
his knowledge of Sears’ habits, Atchison believed that Sears had not been investigating a
suspicious person or vehicle at the time he was murdered, but rather had gone to the location to
meet someone and likely knew his assailant. Atchison reported his belief to Anderson.

Around 11:00 p.m. on June 1, a Kane County detective interviewed two employees of a
nearby business who had discovered Sears’ body. One of them, Floyd Thompson, reported that
he had heard three gunshots and saw a blue mini-van drive away from the crime scene. The
other, Mitchell Gossett, reported that around 8:50 p.m., he had heard three gunshots and then saw
a mini-van or dark-colored SUV back out from the dead end at Elgiloy Drive.

Anderson assigned Lieutenant Bumgarner to notify Sears’ wife, Norma Sears, of his
death. Around 12:30 a.m. on June 2, Bumgarner went to the Travel America truck stop, where
Norma worked. None of the other defendants were present. Bumgarner asked Norma a number
of questions in the presence of Annette Downey, the wife of an Illinois State Police sergeant and
a friend of Norma, and two other friends, Paul and Marian Hosick. Bumgarner asked Norma
who might have killed her husband. She reported that there was a Hampshire police officer who
had been vying for a sergeant’s post at the same time as Sears. Downey became angry and told
Norma that she shouldn’t blame another police officer for Sears’ murder. Bumgarner asked for
the officer’s name; according to the Hosicks, Norma said it could have been any one, as “they
were all mad at him,” and she specifically mentioned Malloy.

About 2:30 a.m. that same morning, Bumgarner and a Kane County detective went to


arrest.” Pitf. Summ. Judg. Mem. at 10. But Carroccia does not squarely identify what
information he says was “fed” to Rogula. The closest he comes is the following statement that
appears several pages earlier in his memorandum: “It is consistent with the above that the photo
spread shown to Rogula, which allowed him to fine-tune his false description of the murder van
(it no longer had a spare tire or tire rack on the rear, only a sticker) consisted of one vehicle, the
plaintiff's.” Pltf. Summ. Judg. Mem. at 5. However, any claim that the police knowingly or
even recklessly caused Rogula to fabricate evidence inculpatory of Carroccia in this regard is
foreclosed by Carroccia’s admissions to each of the following statements in Anderson and
Bumgarner’s Rule 56.1 statement of material facts:

76. Rogula described the van as an older model full-sized van, maroon

in color with surface rust, a flat window on the passenger’s side and a light color
license plate with a stripe on it.

87. Among other things, Rogula stated in the tape-recorded interview
that he heard three gunshots and saw a full sized maroon color van parked behind
a patrol car.

88.  Rogula stated that the van had a window on the side and a light
colored Illinois license plate with a stripe across the top like an Illinois plate.

89. Rogula described the van as having a dull, sun-burnt or weathered
finish.

93.  Bumgarner then showed Rogula photographs of several vehicles
owned by Plaintiff John Carroccia that Bumgarner had taken earlier in the day.

94.  Rogula stated that the van he saw on June 1st was the van, or very
similar to the van, depicted in the photos.

95. The photos of Plaintiffs van depicted a faded maroon color full-

14


the absence of probable cause, see, ¢.g., Swick v. Liautaud, 169 Ill, 2d 504, 512, 662 N.E.2d
1238, 1242 (1996), measured at the time criminal charges are commenced. See, e.g., Mack v.
First Security Bank, 158 Ill. App. 3d 497, 502, 511 N.E.2d 714, 717 (1996). The Court has
already found as a matter of law that probable cause existed to arrest Carroccia. There is no
evidence from which a jury could find that probable cause had dissipated by the time he was
charged, one day after his arrest. Specifically, no evidence had come to the attention of the
defendants or the authorities between the arrest and charging of Carroccia that undercut the
existence of probable cause. Defendants are therefore entitled to summary judgment on Count 7.
6. Count 8 - state law conspiracy claim

A claim of civil conspiracy under Illinois law requires proof of a combination of two or
more persons, for the purpose of achieving an illegal object or a legal object by illegal means,
and an overt tortious or unlawful act by one of the conspirators in furtherance of the conspiracy.
See Fritz v. Johnston, 209 Ill. 2d 302, 317, 807 N.E.2d 461, 470 (2004). Our conclusions on the
claims we have already discussed preclude any basis for a claim that any of the defendants
committed a tortious or unlawful act, or that they sought to achieve an illegal object or undertook
illegal means to achieve a legal object. Defendants are entitled to summary judgment on Count
8.
7. Count 9 - state law claim of intentional infliction of emotional distress

The Court has concluded that the evidence establishes as a matter of law that probable
cause existed supporting Carroccia’s arrest and prosecution and that there is no evidence from
which a reasonable jury could find that the defendants concealed material evidence exculpatory

of Carroccia. Under the circumstances, his arrest and prosecution could not possibly rise to the

16



Fourth Amendment; Count 2, a claim under § 1983 regarding an allegedly unreasonable search of
his home in violation of the Fourth Amendment; Count 5, a claim under § 1983 that the
defendants violated Carroccia’s due process rights by withholding exculpatory evidence; Count
6, a claim under § 1983 for conspiracy to violate Carroccia’s federal constitutional rights; Count
7, a state law malicious prosecution claim; Count 8, a state law conspiracy claim; and Count 9, a
state law claim for intentional infliction of emotional distress. The defendants have moved for
summary judgment on all of these claims. For the reasons stated below, the Court grants the
defendants’ motions.

Facts

Because the Court is deciding motions for summary judgment, we view the facts in the
light most favorable to Carroccia, the non-moving party. See, e.g., Payne v. Pauley, 337 F.3d
767, 770 (7th Cir. 2003). The following statement of facts is taken from matters that Carroccia
has conceded or stated in connection with the parties’ submissions under Local Rule 56.1.

On the night of June 1, 2000, Sears’ body was found, face-down, near his squad car near
the intersection of Tang Boulevard and Elgiloy Road in Hampshire. He had been shot three
times in the back of the head. Hampshire police officers secured the scene and contacted Chief
Atchison. Atchison asked the Illinois State Police to send evidence technicians and asked the
Kane County Sheriff to handle the investigation. Captain Anderson of the Kane County Sheriff's
Police arrived just after 12:30 a.m. and took control of the crime scene, From that time on, the
Kane County Sheriffs Department was in control of the investigation.

Before the Kane County officers arrived, Atchison examined the crime scene and made

several observations, These included the fact that the driver’s side window of Sears’ squad car


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

JOHN CARROCCIA,
Plaintiff,

vs. Case No. 02 C 3916
MICHAEL ANDERSON, TOM
BUMGARNER, RONALD MALLOY,
TOM ATCHISON, JOHN ROGULA,
KANE COUNTY, ILLINOIS, and
VILLAGE OF HAMPSHIRE, ILLINOIS,

Defendants.

wereveveeeeweeee er

BUGKETED
AUG 2 6 2004

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Following his acquittal by a jury on the charge that he had murdered Hampshire, Illinois
police sergeant Gregory Sears, plaintiff John Carroccia sued certain of the police officers,
municipal entities, and others involved in his arrest and prosecution. Specifically, Carroccia has
sued Michael Anderson, a commander with the Kane County Sheriff’s Police; Thomas
Bumgarner, a lieutenant with that same police department; Thomas Atchison, the Hampshire
chief of police; Ronald Malloy, a Hampshire police officer; John Rogula, a witness who provided
information that the police and prosecutors relied upon to arrest and prosecute Carroccia; Kane
County; and the Village of Hampshire.

As a result of the Court’s earlier ruling on defendants’ motion to dismiss, see Carroccia
v, Anderson, 249 F. Supp. 2d 1016 (N.D. Ill. 2003), Carroccia’s remaining claims are as follows:

Count 1, a claim under 42 U.S.C. § 1983 that Carroccia’s arrest violated his rights under the


contained false information. From Carroccia’s memorandum opposing defendants’ summary
judgment motions, it appears that his contention is actually that Bumgarner included false
information that witnesses had provided. See Pltf. Summ. Judg. Resp. at 8-9. But § 1983
liability in this context requires proof that the officer intentionally or at least a recklessly
misstated or omitted a fact material to the showing of probable cause. See Franks v. Delaware,
438 US. 154, 155-56 (1978); Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985) (applying Franks
in the civil context). Carroccia makes no claim that Bumgarner knowingly included any material
false information (the misstatement of one witness’s name was concededly unintentional and in
any event immaterial); his claim is that Bumgarner acted recklessly because he and others had
not corroborated the information in the affidavit. But mere lack of corroboration does not make a
statement reckless under Franks; the recklessness that is required is reckless disregard of the
statement’s truth. Franks, 438 U.S. at 155-56, Carroccia has offered no evidence from which a
reasonable juror could conclude that Bumgarner recklessly disregarded the truth of any of the
statements in his affidavit. The defendants are entitled to summary judgment on Count 2.

3. Count 5 - Fourteenth Amendment due process claim
regarding concealment of exculpatory evidence

In Count 5, as the Court construed it in ruling on the defendants’ motions to dismiss,
Carroccia claims that the defendant officers concealed exculpatory evidence from Kane County
prosecutors and misled them about investigative facts. See Carroceia, 249 F. Supp. 2d at 1022.
As noted in that ruling, Carroceia can make out a claim for violation of his federal constitutional
rights only if he can show that the “officers withheld information or evidence necessary for the

fair and impartial trial guaranteed by the U.S. Constitution.” Carroccia, 249 F. Supp. 2d at

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sized utility style van with surface rust, a side window on the passenger side and a
light color Illinois license plate.

96. | Bumgarner never suggested to Rogula that he was looking for a
certain type, make or color of vehicle.

97.  Rogula at all times volunteered the information as to the color and
other characteristics of the van without any suggestions or prompting or details
given by Bumgarner.
98. Rogula did not know Plaintiff or what type of vehicles he drove.
99, | Bumgarner did not show Rogula the photographs of Plaintiff's van
until after he had been interviewed at Poli-film and after his statements were tape-
recorded at the Burlington substation.
Anderson / Bumgarner LR 56.1 Stmt. {{ 76, 87-89, 93-99 (citations to record omitted). In view
of Carroccia’s admission of these facts, no reasonable jury could find that the defendants had
consciously fed inculpatory information to Rogula, let alone that they concealed exculpatory
information from prosecutors or the defense regarding the circumstances of Rogula’s
photographic identification of the van.
For these reasons, the defendants are entitled to summary judgment on Count 5.
4, Count 6 - claim of conspiracy to violate federal constitutional rights
The Court’s determination that probable cause existed to arrest Carroccia, that none of the
defendants had any involvement in any violation of the constitutional prohibition against
unreasonable searches, and that none of them withheld material exculpatory evidence is fatal to
Carroccia’s claim that they participated in a conspiracy to deprive him of his constitutional
rights. Defendants are entitled to summary judgment on Count 5.

3. Count 7 - state law malicious prosecution claim

A claim of malicious prosecution under Illinois law requires, among other things, proof of

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