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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MEMORANDUM IN SUPPORT OF PLAINTIFF’S RESPONSE IN OPPOSITION TO 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Introduction & Background

Defendant, retired DEA Agent Keith Billiot (“Defendant Billiot”) used excessive deadly 

force on Gus Tousis in his attempt to apprehend Tousis. Tousis did not pose a threat at the time, 

as he was sitting in his vehicle in traffic at a red light. Defendant Billiot, in broad daylight, cut 

Tousis off, engaged his lights and sirens, exited his vehicle and threatened Tousis with his 

weapon. Defendant Billiot placed himself in the path of Tousis’s vehicle, a danger he created and 

was admittedly aware of, yet still chose a course of action that placed his life at risk, and fired 

one shot—killing Gus Tousis—said actions being excessive and unreasonable.

Defendant Billiot moves for summary judgment, which should be denied because there 

are materially disputed facts in evidence when viewed in the light most favorable to Plaintiff.

Defendant Billiot unreasonably created a physically threatening situation in the midst of a Fourth 

Amendment seizure, for which his deadly force cannot be immunized. No reasonable officer 

could think that the Fourth Amendment allows them to use deadly force on an unarmed man who 

is committing no violence and running away from officers, even if he is a suspected felon.

ALEIA TOUSIS, as Special Administrator of 

the Estate of GUS TOUSIS,

Plaintiff,

v.

SPECIAL AGENT KEITH BILLIOT,

Defendant.

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No. 20 C 3012

Judge Coleman

Magistrate Judge Cox

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Standard of Review

Summary judgment may only be granted when no genuine issues of material fact exist 

and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. If after 

reviewing the record, the court finds that a genuine issue of material fact exists, summary 

judgment is improper. See Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000). A disputed fact 

is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford 

Motor Co., 561 F.3d 709, 713 (7th Cir. 2009).

At the summary judgment stage, the nonmovant does not need to establish, show, or 

prove anything but must merely demonstrate that genuine issue of material fact exists. Sabol v. 

Walter Payton College Preparatory High Sch., 804 F. Supp. 2d 747 (N.D. Ill. 2011). In ruling on 

a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all 

justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 255 (1986). Thus, any doubt as to the existence of a genuine issue for trial is resolved 

against the moving party. Id. The court should only grant summary judgment if no reasonable 

factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 

(7th Cir. 2009).

Argument

It is wholly inappropriate for Defendant Billiot to move for summary judgment based on 

the critical facts in dispute and considering the caselaw supporting Plaintiff’s position. 

Defendant’s version of facts and sequence of events are themselves contradictory and do not 

support the granting of summary judgment.

In excessive-force cases where the victim of law enforcement’s force died, as is the case 

here, the Seventh Circuit cautions against summary judgment. Cyrus v. Town of Mukwonago, 

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624 F.3d 856, 862 (7th Cir. 2010). The evidence in these cases is typically open to different 

interpretations, and the plaintiff faces a special challenge because “the witness most likely to 

contradict the officer's testimony—the victim—cannot testify.” Holmes v. Hernandez, 2021 U.S. 

Dist. LEXIS 177401 at *25-26. In situations where the witness most likely to contradict the 

officer, the suspect himself, is dead, the court is to examine all of the evidence to determine if the 

officer’s story is consistent. Maravilla v. United States, 60 F.3d 1230, 1233-34 (7th Cir. 1995) 

(citing Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). 

Here, there are several critical, disputed facts, such as: the manner in which Defendant 

Billiot attempted to seize Tousis, whether Tousis’s vehicle reversed, the direction in which 

Tousis’s vehicle drove, Defendant Billot’s physical position in the moments leading up to and 

during the alleged striking of the vehicle, the timing of the shot, and whether Defendant Billiot 

was struck by the vehicle. These disputed facts are determinative in ascertaining whether 

Defendant Billiot’s belief—that he was in imminent harm—was reasonable when he shot Tousis.

I. Defendant Billiot’s use of deadly force was unreasonable, excessive, and 

unconstitutional at the time and under the circumstances of his seizure and 

shooting of Gus Tousis.

Whether the force used by police officers complies with the Fourth Amendment turns on 

whether the officers’ actions are objectively reasonable in light of the facts and circumstances 

confronting them, without regard to their underlying intent or motivation. Graham v. Connor, 

490 U.S. 386, 397 (1989). The fact-specific nature of whether an officer used excessive force 

depends on the totality of the circumstances surrounding the encounter. See Estate of Phillips v. 

City of Milwaukee, 123 F.3d 586, 592 (7th Cir. 1997).

Courts must pay 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 

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safety of the officers or others, and whether he is actively resisting arrest or attempting to evade 

arrest by flight. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). In evaluating the 

constitutionality of officer conduct, the court must “carve up the incident into segments and 

judge each on its own terms to see if the officer[s] w[ere] reasonable at each stage.” Deering v. 

Reich, 183 F.3d 645, 652 (7th Cir. 1999).

Defendant argues that Tousis’s flight from an attempted arrest at high speeds is 

sufficiently serious to justify the use of force. The problem with this contention is that Tousis

was not driving at a high rate of speed (Plaintiff’s SOF ¶¶ 21, 27) and there was no active, 

sustained police pursuit at the time Defendant Billiot shot and killed Tousis (Plaintiff’s SOF ¶¶ 

20, 25, 27). In fact, Tousis was stopped in traffic with a red light and two vehicles ahead of him 

when Defendant Billiot attempted to seize Tousis by cutting in front of his vehicle. DSOF ¶ 35; 

Plaintiff’s SOF ¶ 74. It was unreasonable for Defendant Billiot to attempt to seize Gus Tousis at 

the time under these circumstances, sitting in traffic without having committed a violation, let 

alone threaten Tousis with deadly force.

Defendant argues that Tousis posed a fatal threat to Defendant Billiot, but the facts do not 

support this contention. A police officer may use deadly force only to seize a fleeing felon who 

has committed a violent crime or who presents an immediate danger to the officer or others. 

Tennessee v. Garner, 471 U.S. 1, 11 (1985). It is not alleged that Tousis committed a crime other 

than possessing a controlled substance (DSOF ¶ 68), which was unconfirmed at the time, much 

less a violent crime. Defendant Billiot had no knowledge that Tousis carried a weapon or had 

ever been arrested for unlawful use or possession of a weapon. Plaintiff’s SOF ¶ 80.

Defendant argues that Tousis’s utilization of his vehicle as a deadly weapon constitutes 

an immediate danger, but the facts do not indicate he intended to strike Defendant Billiot, used 

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the vehicle in any way other than to escape, nor is there evidence that the vehicle actually struck 

Defendant Billiot. It is disputed whether Tousis reversed his vehicle (Plaintiff’s SOF ¶ 41), or 

whether it came to an abrupt stop (Plaintiff’s SOF ¶ 45). These facts cannot conclusively 

demonstrate Tousis’s intent. Special Agent Boehnke testified that he assumed Tousis had 

reversed so Tousis could back up to get around Defendant Billiot (Plaintiff’s SOF ¶ 78), not so 

that he could strike Defendant Billiot. Aleia Tousis testified that she believes her father, Gus, 

was not trying to hurt Defendant Billiot because Gus is not an aggressive or violent person. 

Plaintiff’s SOF ¶ 85. The Seventh Circuit has emphasized that someone does not pose “an 

immediate threat of serious harm” solely because he is armed. Estate of Biegert v. Molitor, 968 

F.3d 693, 700 (7th Cir. 2020).

The direction in which Tousis’s vehicle moved cannot be conclusively determined, so the 

court cannot assume Tousis’s intent, or whether Defendant Billiot’s fear was reasonable.

Defendant argues that Tousis drove directly straight toward Defendant Billiot, but the record

demonstrates that Tousis was actually turning right to avoid Defendant Billiot. Comparing the 

location where the bullet struck the steering wheel to where the bullet struck the windshield, the 

positioning indicates that Tousis was turning his wheel to the right, maneuvering his vehicle 

away from Billiot, and Billiot was angled to the driver side of the front end of Tousis’s vehicle.

Plaintiff’s SOF ¶ 56. Further, Tousis’s vehicle veered to the right, the right-hand lane was clear 

of traffic, and Tousis’s vehicle entered the righthand lane. Plaintiff’s SOF ¶ 48.

The fact that Defendant Billiot was not struck by Tousis’s vehicle makes it less likely that 

he was in fear of his life, because he was not at risk of harm. Gus Tousis’s vehicle did not strike 

Defendant Billiot. Plaintiff’s SOF ¶ 50, 51. There is no damage to the front of Tousis’s vehicle 

where it allegedly struck Defendant Billiot, further supporting the fact that no collision occurred. 

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Plaintiff’s SOF ¶ 50. There is no allegation of injury to Defendant Billiot’s chest, torso, or waist, 

but only to his back from striking it on the curb. Id. His complaints of pain were that of his back, 

not his chest, torso, or waist. Id.

Rather than fall to the ground after being allegedly struck, Defendant Billiot backpedaled 

toward the median (Plaintiff’s SOF ¶ 52), but an impact of such claimed magnitude is likely to 

throw a person off their feet. Billiot did not ride in an ambulance to the hospital. Plaintiff’s SOF 

¶ 50. His injuries were not severe enough to be admitted, as he was treated and released that 

same day. Id. After the shooting, Defendant Billiot told Boehnke “I had to,” but not “he [Tousis] 

hit me.” Plaintiff’s SOF ¶ 64. 

The statement made by Detective Braun that Defendant Billiot “had injuries consistent 

with being struck by a vehicle” is hearsay and should be deemed inadmissible. Plaintiff’s SOF ¶ 

67. The Court may not weigh conflicting evidence or make credibility determinations, Omnicare, 

Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must consider only 

evidence that can “be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 

56(c)(2). That statement came from CPD Detective James Braun’s report, which itself came 

from Detective Patrick Loftus’s spoken statement to Detective Braun, which itself came from an 

unidentified doctor. Id. This statement is medical opinion and should be discounted because it 

did not come from a medical expert or medical report. Detective Braun never received Defendant 

Billiot’s medical records. Id. Defendant Billiot had spinal surgery approximately two-and-a-half 

months prior to the shooting, which could have been aggravated by the fall where he struck his 

back on the curb of the median. Id. 

The two-ton “weapon” that Tousis used to threaten Defendant Billiot’s life likely would 

have caused more significant injuries than those alleged if it actually struck Defendant Billiot.

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There is no evidence to support the claim that Defendant Billiot was struck in the chest.

Common sense suggests that no allegation of injury to his chest, without medical evidence to 

buttress the claim, demonstrates the fact that Defendant Billiot was not struck by the vehicle.

The Supreme Court has held that the use of deadly force to prevent the escape of all 

felony suspects, whatever the circumstances, is unconstitutionally unreasonable. Garner, 471 

U.S. at 11. Defendant Billiot’s use of deadly force is unconstitutionally unreasonable under the 

facts presented. The manner and method in which Defendant Billiot attempted to seize Gus 

Tousis, which resulted in his death, must be considered.

Defendant Billiot seized Tousis with a sudden and dramatic show of force. While Tousis 

was stopped in traffic at a red light with two vehicles ahead of him (DSOF ¶ 35; Plaintiff’s SOF 

¶ 74), Defendant Billiot cut Tousis off (Plaintiff’s SOF ¶ 39) by pulling in front of Tousis’s 

vehicle as he engaged his lights and sirens (DSOF ¶ 38). Defendant Billiot cut in front of 

Tousis’s vehicle at a northwestern angle, positioning his driver’s side door directly in front of 

Tousis’s vehicle. Plaintiff’s SOF ¶ 38. Defendant Billiot testified that his driver side door was 

close enough to Tousis’s vehicle that Defendant Billiot felt concerned that if he exited his 

vehicle at the time he stopped in front of Tousis’s vehicle, that he would be in great danger 

because of the risk of being struck by Tousis’s vehicle. Plaintiff’s SOF ¶ 76. Defendant Billiot 

testified that he did not immediately exit his vehicle because he did not want to risk being struck 

by Tousis’s vehicle. Plaintiff’s SOF ¶ 75.

Defendant Billiot understood the risk he took by placing himself in the path of Tousis’s 

vehicle, positioning his vehicle in front of Tousis’s vehicle with his driver side door directly in 

front of Tousis’s vehicle (Plaintiff’s SOF ¶ 49), and his DEA-issued vehicle located directly 

behind him (Plaintiff’s SOF ¶ 79). He exited his vehicle toting his carbine rifle (Plaintiff’s SOF 

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¶¶ 40, 49) and pointed it at Gus Tousis (Plaintiff’s SOF ¶ 43). Defendant Billiot’s carbine rifle 

had one bullet in the chamber. Plaintiff’s SOF ¶ 11.

As soon as Tousis’s vehicle pulled forward, Defendant Billiot testified that he fired his 

weapon. Plaintiff’s SOF ¶ 53. The distance between Defendant Billiot and Tousis at the time of 

the shooting is in dispute, as Defendant Billiot pulled his vehicle in front of Tousis’s vehicle with 

his driver side door nearest the front of Tousis’s vehicle. Plaintiff’s SOF ¶ 38. There was an 

estimated distance between Defendant Billiot and Tousis of at least 10 feet and at most 25 feet 

away from each other when Defendant Billiot exited his vehicle, and Defendant Billiot ran as 

fast as he could directly toward Tousis’s vehicle (Plaintiff’s SOF ¶¶ 44, 49), shortening the 

distance between them. Plaintiff’s SOF ¶ 53.

Despite his admitted concern for the danger he was placing himself in, Defendant Billiot 

ran as fast as he could toward Tousis’s vehicle, more toward the driver side (Plaintiff’s SOF ¶

51), with nothing between his person and Tousis’s vehicle. Plaintiff’s SOF ¶¶ 44, 49. He claims 

he had no time to get out of the way, but he had time to run as fast as he could directly toward a 

vehicle he knew had the capability of striking him. Plaintiff’s SOF ¶ 44. Defendant Billiot knew 

he would be struck (Plaintiff’s SOF ¶ 44), but still acted in such a way that placed him in danger.

Plaintiff’s version of events is supported by Special Agent Boehnke’s statement and 

testimony. Boehnke related that as he was pulling up behind the target vehicle [Tousis] he heard 

a single gunshot and then observed Agent Billiot fall to the ground.” Plaintiff’s SOF ¶ 74.

Boehnke “related he then observed the target vehicle accelerate quickly and veer off to the right 

before striking a street light and coming to a stop.” (emphasis added) Id. Special Agent Boehnke 

stated that the summary of his interview by Detective Braun was accurate in the description of 

the incident. Plaintiff’s SOF ¶ 73. This version runs contrary to Defendant Billiot’s version.

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The timing of the shot (Plaintiff’s SOF ¶ 53), distance between Defendant Billiot and 

Tousis (Plaintiff’s SOF ¶ 53), whether Defendant Billiot was struck (Plaintiff’s SOF ¶50-51), 

and the positioning of Defendant Billiot and Tousis (Plaintiff’s SOF ¶ 44, 49, 56) are in dispute 

to the extent that that it cannot be conclusively determined that Defendant Billiot’s life was in 

danger. Plaintiff’s SOF ¶ 54. By placing himself in the path of a vehicle and running directly 

toward it, Defendant Billiot unreasonably created a physically threatening situation in the midst 

of a Fourth Amendment seizure, for which his deadly force cannot be immunized. Estate of 

Starks v. Enyart, 5 F.3d 230, 233 (7th Cir. 1993). Officers who unreasonably create the 

encounter that ostensibly permit the use of deadly force to protect themselves cannot be 

immunized. Id. at 234.

As the Supreme Court explained in Garner, no seizure is more intrusive than one effected 

by deadly force. 471 U.S. at 9. Sometimes officers must let felony suspects escape rather than 

resort to deadly force. Id. at 11. It is not better that all felony suspects die than that they escape. 

Id. Where the suspect poses no immediate threat to the officer and no threat to others, the harm 

resulting from failing to apprehend him does not justify the use of deadly force to do so. Id. To 

determine whether the force used to effect a particular seizure is reasonable, we balance the 

nature and quality of the intrusion on the individual’s rights against the “countervailing 

governmental interests at stake.” Graham, 490 U.S. at 395.

Defendant Billiot attempts to paint Gus Tousis as a threatening individual driving 

menacingly to justify his deadly use of force. Defendant Billiot claimed he intended to end the 

alleged threat because he was concerned that Tousis posed a threat to Boehnke and other 

civilians. Defendant Billiot stated, “I made the decision hey, let’s try to stop him now.” DSOF ¶ 

36. However, an officer’s good intentions do not make an objectively unreasonable use of force 

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constitutional. Graham, 490 U.S. at 397 (citing United States v. Robinson, 414 U.S. 218 (1973)).

The reasonableness inquiry is objective, and the officer’s subjective belief or motivations are 

irrelevant. Id.

Defendant argues that he was concerned for the safety of Special Agent Boehnke when 

Tousis allegedly reversed. However, Boehnke was not in a position to feel threatened by 

Tousis’s vehicle. Boehnke testified that he was still driving and some distance back from Tousis 

and Defendant Billiot’s vehicles and was over a hundred yards away when Defendant Billiot 

pulled his vehicle in front of Tousis’s vehicle. Plaintiff’s SOF ¶ 42.

To support his claim that the threat of harm was sufficiently serious, Defendant Billiot 

cites a sentencing report in which a DEA agent was struck by a motor vehicle. DSOF ¶ 72.

However, this report is not part of the record and should be deemed inadmissible as irrelevant, 

immaterial, and prejudicial to Plaintiff. Plaintiff’s SOF ¶ 72. This fact, even if true, does not 

offer any probative value to the issue or facts of this case.

If anyone was menacing in this deadly encounter, it was the shooting officer, Defendant 

Billiot. Defendant Billiot exited his vehicle with his carbine rife drawn because he feared risk to 

civilians by Tousis, but there was no active police chase (Plaintiff’s SOF ¶¶ 20, 25, 27), no high 

rate of speed (Plaintiff’s SOF ¶¶ 21, 27), or threat to civilians at the time Defendant Billiot cut in 

front of Tousis’s vehicle (Plaintiff’s SOF ¶¶ 38-40). Plaintiff’s SOF ¶ 77.

Whether Tousis intended to drive forward on his own volition or did so prior to being 

shot is disputed. Special Agent Boehnke related that he heard a single gunshot and then observed 

the vehicle accelerate quickly. Plaintiff’s SOF ¶ 74. Boehnke saw Tousis slumped down and 

bleeding from the neck as he approached Tousis’s vehicle. DSOF ¶ 61. It is possible, and more 

than likely, that Gus Tousis was dead or incapacitated when his vehicle moved forward. The 

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threat of danger presented by the fleeing felon must be willful in order to warrant the use of 

deadly force in response. Starks, 5 F.3d at 234. There is no evidence that this act was willful. 

Regarding the reasonableness of lethal force as a response to vehicular flight, the Supreme Court

observed that this is an area “in which the result depends very much on the facts of each case”

Brosseau v. Haugen, 543 U.S. 194, 201 (2004).

Defendant argues that DEA policy allows an agent to fire at a person driving a moving 

vehicle to justify Billiot’s unreasonable use of deadly force. DSOF ¶ 71. However, an agent can 

only do so if the vehicle “poses an imminent threat of death or seriously physical injury to the 

officer or another person,” which was not the case here. Plaintiff’s SOF ¶ 71. Policies and 

procedures do not shed light on the reasonableness of an officer’s behavior because, “even if 

they could be practicably assessed by a judge, [such policies] vary from place to place and from 

time to time,” and so “[w]e cannot accept that the search and seizure protections of the Fourth 

Amendment are so variable.” Whren v. United States, 517 U.S. 806, 815 (1996). The court 

should give no weight to the argument that Defendant Billiot did not violate DEA policy.

Defendant Billiot acted with impunity and now hopes to escape liability for his excessive 

use of unjustifiable deadly force. Defendant Billiot claims he provided medical attention to 

Tousis. However, Billiot testified that he did not run toward Tousis’s vehicle after it crashed, nor 

did he have anything to do with the extrication process. Plaintiff’s SOF ¶ 81. Defendant Billiot

does not believe he caused the death of Gus Tousis. Plaintiff’s SOF ¶ 82. This is ultimately a 

question of fact for the jury’s determination. Defendant Billiot was scheduled for pre-approved 

leave to start the Monday following the shooting. Plaintiff’s SOF ¶ 83. Aleia Tousis filed this 

lawsuit because she seeks justice for her father’s unjustifiable killing. Plaintiff’s SOF ¶ 84. The 

intrusiveness of a seizure by means of deadly force is unmatched. Garner, 471 U.S. at 9. The 

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suspect’s fundamental interest of his own life need not be elaborated upon. Id. The use of deadly 

force also frustrates the interest of the individual, and of society, in judicial determination of 

guilt and punishment. Id.

II. Defendant Billiot is not entitled to qualified immunity because he violated Gus 

Tousis’s clearly established rights and Plaintiff can point to a clearly analogous 

case.

Qualified immunity balances two important interests—the need to hold public officials 

accountable when they exercise power irresponsibly and the need to shield officials from 

harassment, distraction, and liability when they perform their duties reasonably. Pearson v. 

Callahan, 555 U.S. 223, 231 (2009). Disputes of material fact may preclude qualified immunity, 

when reading the facts in the light most favorable to the plaintiff leads to the conclusion that a 

reasonable jury could find that the defendant violated a clearly established right. Holmes, 2021 

U.S. Dist. LEXIS 177401 at *24.

Under qualified immunity, government officials are shielded from civil liability so long 

as their conduct does not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known. Zimmerman v. Doran, 807 F.3d 178 (7th Cir. 2015). To 

defeat qualified immunity, a plaintiff must establish both that (1) the defendant violated a 

constitutional right and (2) the right was “clearly established,” Pearson, 555 U.S. at 232, both “at 

the time and under the circumstances presented,” Bianchi v. McQueen, 818 F.3d 309, 319 (7th 

Cir. 2016).

Previous Supreme Court cases clearly establish that a suspect fleeing in a car that has not 

posed a danger to anyone has a clearly established right not to be seized with deadly force. See

Graham, 490 U.S. 386; Garner, 471 U.S. 1. A plaintiff can show that a right is clearly 

established in one of two ways. See Wheeler v. Lawson, 539 F.3d 629 (7th Cir. 2008). First, the 

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plaintiff can point to a clearly analogous case that establishes the right to be from the specific 

conduct at issue, and second, the plaintiff can show that the conduct in question is so egregious 

that no reasonable person could believe that it was constitutionally permissible. Id.

Plaintiff can point to a clearly analogous case, that of Estate of Starks v. Enyart, 5 F.3d 

230 (7th Cir. 1993). In Starks, the court of appeals denied qualified immunity because the officer 

created the need for deadly force by unreasonably stepping in front of a driver who had just 

began to flee his car; officer created the situation that caused the officer to fear for his own or 

others’ safety. See generally, Starks, 5 F.3d 230.

The key dispute in Starks was whether the defendant officer stepped in front of the 

decedent’s rapidly moving cab. If the defendant officer did so, he would have unreasonably 

created the encounter that ostensibly permitted the use of deadly force to protect him, because 

the decedent would have been unable to react in order to avoid presenting a deadly threat. Starks, 

5 F.3d at 234. This key dispute in Starks that summary judgment was denied upon tracks the key 

factual dispute at issue in this case—whether Defendant Billiot’s unreasonable action of 

positioning himself in front of Tousis’s vehicle prompted the danger he faced.

Starks does not say that officers who use aggressive police tactics cannot use deadly force 

if it becomes necessary. Estate of Brown v. Thomas, 2014 U.S. Dist. LEXIS 34459 at *7 (E.D. 

Wis. 2014). It merely says that police cannot escape liability if their actions turn a nonviolent 

fleeing suspect into a violent threat to life and limb. Id.

Estate of Starks v. Enyart highlights how concrete the threat of danger from the fleeing 

felon must be to justify the use of deadly force. Holmes, 2021 U.S. Dist. LEXIS 177401 at *45.

In Starks, the Seventh Circuit concluded that if the officer jumped in front of the car, then Starks 

was not intentionally putting that officer in danger, and the use of deadly force against him was 

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unwarranted. Id. at *45. This conclusion is particularly striking because the decedent was fleeing 

in a stolen car. Id. at *45-46.

Fleeing felons who have not resorted to violence are accorded less intrusive seizures.

Starks, 5 F.3d at 234. If a fleeing felon is converted to a “threatening” fleeing felon solely based 

on the actions of a police officer, the police should not increase the degree of intrusiveness. Id. In 

other words, we have no countervailing governmental interest in unreasonable police conduct 

that would justify a greater intrusion on the individual's rights. Id.

In the case of Scott v. Edinburg, the Seventh Circuit held that summary judgment was 

inappropriate because there was a genuine issue of fact regarding whether the officer fired his 

weapon when the car was backing toward him, standing still, or moving away from him. 346 

F.3d 752 (7th Cir. 2003). In this case, the movement of Tousis’s vehicle and the position of 

Defendant Billiot when he fired his weapon are in such dispute that summary judgment should 

be denied. As the court noted, “[i]f the fatal shot was fired while Mr. Scott was driving away, 

then the argument that Officer Edinburg was compelled to fire in order to protect himself would 

be significantly weakened.” Id. at 757-58.

Although it is not necessary that a prior case address the precise factual situation 

confronting the officer, the unlawfulness of the officer’s action should be clear in light of preexisting law. Rice v. Burks, No. 92-2513 (7th Cir. July 26, 1993); McDonald v. Haskins, 966 

F.2d 292 (7th Cir. 1992). This requirement does not mean that a plaintiff must be able to point to 

a case “on all fours” with the defendant officer’s misconduct. Howell v. Smith, 853 F.3d 892, 897 

(7th Cir. 2007); see Hope v. Pelzer, 536 U.S. 730, 741 (2002). Defendant will argue that the facts 

of this case are different than those of Starks and Scott, but the facts viewed in light most 

favorable to plaintiff support Plaintiff’s version of events—that Defendant Billiot positioned 

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himself in front of Tousis’s vehicle, creating the danger that ostensibly justified his use of force.

Courts have consistently denied summary judgment on these facts.

Conclusion

Plaintiff has demonstrated that genuine issues of material fact exist, such that summary 

judgment against Defendant Billiot is improper. Summary judgment on the excessive force claim 

is improper because Plaintiff can show that Defendant Billiot’s use of deadly force was 

unreasonable, excessive, and unconstitutional at the time and under the circumstances of his 

seizure and shooting of Gus Tousis. Summary judgment on the qualified immunity claim is 

improper because Defendant Billiot violated Gus Tousis’s clearly established rights and Plaintiff 

can point to a clearly analogous case.

The court must consider these facts in the light most favorable to the nonmovant, Plaintiff 

Aleia Tousis. Plaintiff alleges many facts are in dispute regarding the actions of both Plaintiff 

and Defendant, so this action should be left for a judge or jury to decide.

WHEREFORE, for the above reasons, Plaintiff, Aleia Tousis, respectfully requests that 

this Honorable Court deny Defendant’s motion for summary judgment and for any further relief 

the Court deems reasonable and just.

Respectfully submitted,

/s/ Vincenzo B. Caporale_____

One of Plaintiffs’ Attorneys

Vincenzo B. Caporale #6335651

Gregory E. Kulis & Associates, Ltd.

30 N. LaSalle Street, Suite 2140

Chicago, IL 60602

P. 312.580.1830

E. gkulis@kulislawltd.com

E. vcaporale@kulislawltd.com

Case: 1:20-cv-03012 Document #: 62-1 Filed: 02/22/22 Page 15 of 15 PageID #:433