1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEMETRIUS JOHNSON, )

)

Plaintiff, )

)

vs. ) Case No.: 20 cv 4156

)

REYNALDO GUEVARA, et al., ) Judge Sara L. Ellis

)

Defendants. )

DEFENDANT REYNALDO GUEVARA’S REPLY IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

Defendant Guevara’s Motion for Summary Judgment adopted certain portions of the Motion 

for Summary Judgment filed by his co-defendants, Ernest Halvorsen (deceased), Darryl Daley, William 

Erickson, and John Healy. See Dckt. No. 309. To this end, Defendant Guevara similarly adopts the 

reply in support of these same legal arguments filed by his co-defendants as well as his co-defendants’

arguments in Part I of their reply asserting that Plaintiff has improperly attempted to insert new legal 

and evidentiary theories into this case via his response as a way to avoid summary judgment, has 

distorted the evidentiary record, and has disregarded the parties’ Joint Statement of Facts. See CoDef.’s Reply in Supp. MSJ. To the extent this Court grants such Motion on these bases, this Court 

should similarly grant Defendant Guevara’s Motion for Summary Judgment as well.

Beyond this, Plaintiff offers several additional procedural obstacles he claims preclude this 

Court from entering summary judgment on Defendant Guevara’s behalf in particular: (1) Defendant 

Guevara somehow has acted improperly in adopting arguments of his co-defendants and that this is 

tantamount to him not filing a motion at all; and (2) Defendant Guevara is not allowed to move for 

summary judgment at all because of his decision to use the rights that the Fifth Amendment of the 

Constitution of the United States grants him. Neither of these arguments have merit. 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 1 of 16 PageID #:52272
2

I. Plaintiff’s Argument That Defendant Guevara Cannot Adopt Legal Arguments 

Of His Co-Defendants Is Baseless.

Plaintiff initially takes issue with Defendant Guevara adopting arguments made by his codefendants and avers that this is somehow procedurally improper. See Dckt. No. 341 at 29. According 

to Plaintiff, this is tantamount to Defendant Guevara not filing a motion for summary judgment at all 

because his co-defendants “do not make any argument that [Defendant Guevara] in particular is 

entitled to summary judgment” and claims that Defendant Guevara has waived his right to summary 

judgment as a result. Id. Plaintiff is plainly incorrect. 

First, there is nothing inappropriate about adopting arguments made by a similarly situated 

co-defendant in the same case in a contemporaneously-filed set of briefs, it is done routinely in this 

court and others, and Plaintiff cites no law holding to the contrary (Dckt No. 341 at 27-29). See e.g,

Desai v. General Growth Properties, Inc., 654 F.Supp.2d 836, 841 (N.D.Ill. 2009)(“Although Freibaum’s 

counsel have filed a separate motion to dismiss and reply brief, those documents simply adopt in their 

entirety, and incorporate by reference, the other Defendants' motion and briefs. Hence the 

Defendants' separate filings will be treated as if they were single documents.”); Central States, Southeast 

and Southwest Areas Pension Fund v. Central Transport, Inc., 861 F.Supp. 1402, 1406 (N.D.Ill., 1994)(same); 

United States v. Indiana University Health Inc., 2016 WL 10567965, at *1 (S.D.Ind. 2016)(same); Fed. R. 

Civ. P. 10(c)(explicitly permitting adoption by reference of pleadings by reference to other pleading).

Indeed, this process is particularly appropriate here. As this court is well-aware, Plaintiff alone filed a 

grossly bloated series of documents during the summary judgment briefing replete with a 170-page 

response brief and a nearly 500 paragraph statement of disputed facts. See Dckt. Nos. 340, 341. It 

would make little practical sense for Defendant Guevara to mire this Court down in yet additional 

briefing making the exact same arguments about the exact same evidence and legal theories as similarly 

situated co-defendants when adoption serves the same purpose. Indeed, such a procedural efficiency 

is wholly consistent with this Court’s summary judgment procedures which contemplate the 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 2 of 16 PageID #:52273
3

coordination and consolidation of similar factual material relied on during the summary judgment 

process. See Judge Sara L. Ellis Case Procedures, Summary Judgment Practice 

(https://www.ilnd.uscourts.gov/judge-info.aspx? IuUaWzNcEoMjnUrpQywl4u6GKGneLRit).

Moreover, contrary to Plaintiff’s accusations of a boilerplate adoption of arguments, 

Defendant Guevara did not simply wholesale adopt his co-defendants’ arguments in their entirety but, 

rather, specifically identified which arguments universally applied to him as well as these co-defendants 

and which did not. See Dckt. No. 309 at 2-5 (adopting substantive legal arguments of co-defendants 

but excluding adoption of personal involvement arguments). Plaintiff’s undeveloped arguments that 

Defendant Guevara is somehow not similarly situated with these other defendants as to certain pieces 

of evidence and legal theories is wholly unavailing. See Dckt. No. 341 at 29 (“Guevara does not address 

multiple items of evidence that he fabricated or suppressed himself, joining a motion that does not 

address those fabrications and suppressions, and so Guevara cannot possibly claim an entitlement to 

summary judgment on the malicious prosecution, Fourth Amendment, IIED, conspiracy, and other 

claims that flow from the same misconduct.”). Plaintiff leaves it somewhat a mystery which piece(s)

of evidence or legal theories he is referring to that Defendant Guevara in particular did not adopt and, 

thus, Plaintiff himself has failed to develop his argument resulting in waiver. 

In essence, Plaintiff argues that Defendant Guevara cannot obtain summary judgment on 

claims on which he has not moved. Dckt. No. 341 at 28-29. This is true but not at all what Defendant 

Guevara has sought to do, of course. Defendant Guevara adopted arguments that universally apply 

regardless of which named Defendant is alleged to have been involved in the alleged transgressions at 

issue and specifically excluded the arguments that do rely on the specific acts or omissions of any 

particular defendant. See Dckt. No. 309 at 2-5. These include joining arguments:

• based on absence of evidence of knowing fabrication of third-party witness identifications 

because witnesses confirmed veracity of identifications; 

• that allegedly fabricated evidence was not used at trial;

• that suggestive identification claims are not legally cognizable under Section 1983;

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 3 of 16 PageID #:52274
4

• that identifications were not suggestive and were reliable as a matter of law;

• that there is no evidence that any defendant knew that identifications were false; 

• that qualified immunity shields defendants from claims because alleged unconstitutionality of 

conduct was not well established;

• that concealment of alleged misconduct is not a freestanding Brady claim;

• that Plaintiff’s awareness of allegedly suppressed evidence bars his Brady claim;

• that there is no Brady claim based on suppression of evidence not established to have existed 

in first place;

• that probable cause existed for Plaintiff’s prosecution/detention;

• that Plaintiff cannot establish a failure to intervene claim without underlying constitutional 

violation;

• that failure to intervene is not a cognizable cause of action;

• that Plaintiff’s IIED claim is barred because of the insufficiency of his constitutional claims; 

• that conspiracy claims cannot proceed without an underlying constitutional or state law 

violation; and

• that there is no separate claim for willful and wanton conduct under Illinois law.

All of these adopted arguments either pertain to objective legal infirmities that have nothing 

to do with any particular defendant’s conduct or misconduct (i.e. probable cause, qualified immunity, 

lack of cognizability of Brady theories, lack of cognizability of suggestive identification claims, etc.), 

the dearth of evidence supporting claims made by Plaintiff (e.g. no evidence that certain pieces of 

evidence were fabricated because witnesses stood by claims, etc.), relevance of Plaintiff’s knowledge

of allegedly suppressed evidence, and other such issues that have nothing to do with Defendant 

Guevara’s individual actions. Id. None of these issues are impacted by whether it is Defendant Guevara 

who has made the argument in his own brief or whether he has adopted the argument of another 

Defendant making the same argument. Id. Stated another way, it does not matter for these arguments 

what exactly Defendant Guevara was accused of doing in particular because either the law or the 

evidence (or both) defeat the claims regardless. Thus, at bottom, Defendant Guevara is entitled to 

summary judgment to the same extent as his co-defendants for the reason set forth in their briefs.

II. Plaintiff’s Attempts To Convince This Court To Overrule Decades Of Law On 

The Standards Applied When A Defendant Invokes His Fifth Amendment 

Rights Are Baseless.

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 4 of 16 PageID #:52275
5

Plaintiff spends seven pages of his already bloated response brief presenting a convoluted 

argument attempting to convince this Court to ignore every single case in existence addressing the 

evidentiary standards this Court must apply where a defendant has invoked his Constitutional Rights 

under the Fifth Amendment. See Dckt. No. 314 at 31-37. Plaintiff instead asks this Court to chart a 

new path in derogation of law whereby a Fifth Amendment invocation is alone sufficient evidence to 

carry a plaintiff’s summary judgment burden and, additionally, that defendants who invoke their 

constitutional rights during civil litigation are categorically denied any opportunity to seek summary 

judgment and must proceed to trial automatically. Id.

Plaintiff’s arguments are premised on two baseless contentions. The first is that a civil 

defendant somehow must personally and affirmatively introduce evidence supporting his right to 

summary judgment in order to satisfy his burden of production in moving for summary judgment (as 

opposed to merely pointing to the absence of evidence supporting the claims against him). See Dckt. 

No. 341 at 32-33 (arguing that “[t]he movant ‘cannot sustain its burden merely by denying the 

allegations in the opponent’s pleadings, or merely by asserting that the nonmovant lacks evidence to 

support its claim’” and that “[a] moving party who asserts their Fifth Amendment right to remain 

silent in response to questions about every material fact cannot satisfy the initial burden of production 

at summary judgment, because that party can neither point to evidence negating an essential element 

of the claim nor establish that proof will be lacking on material facts at trial.”). This has not been the 

law for many years and, indeed, this theory was rejected by the Supreme Court nearly forty years ago.

In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court addressed the proper 

standards for Courts to apply under Rule 56 when a civil defendant did not produce affirmative 

evidence supporting the non-existence of a fact on which the plaintiff bore the ultimate burden of 

proof. Id. In that case, the Court of Appeals had reversed a lower court’s award of summary judgment 

in favor of a civil defendant because it found that the defendant’s “summary judgment motion was 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 5 of 16 PageID #:52276
6

rendered ‘fatally defective’ by the fact that [the defendant] ‘made no effort to adduce any evidence, in 

the form of affidavits or otherwise, to support its motion.’” Id. at 322. Citing Adickes (the same preCelotex case that Plaintiff relies on here), the Court of Appeals held that “the party opposing the motion 

for summary judgment bears the burden of responding only after the moving party has met its burden 

of coming forward with proof of the absence of any genuine issues of material fact.” Id. The Supreme 

Court reversed and held that a civil defendant need not introduce any evidence whatsoever to be 

entitled to summary judgment but must only identify the absence of evidence that a plaintiff needs to 

carry their ultimate burden of proof at trial. Id. at 322-23. The Court explained:

We think that the position taken by the majority of the Court of Appeals is inconsistent with 

the standard for summary judgment set forth in Rule 56(c) of the Federal Rules of Civil 

Procedure....In our view, the plain language of Rule 56(c) mandates the entry of summary 

judgment...against a party who fails to make a showing sufficient to establish the existence of 

an element essential to that party's case, and on which that party will bear the burden of proof 

at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a 

complete failure of proof concerning an essential element of the nonmoving party’s case 

necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a 

matter of law” because the nonmoving party has failed to make a sufficient showing on an 

essential element of her case with respect to which she has the burden of proof...

Of course, a party seeking summary judgment always bears the initial responsibility of 

informing the district court of the basis for its motion, and identifying those portions of “the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material 

fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 

that the moving party support its motion with affidavits or other similar materials negating the 

opponent's claim. On the contrary, Rule 56(c), which refers to “the affidavits, if any” , suggests 

the absence of such a requirement. And if there were any doubt about the meaning of Rule 

56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that 

claimants and defendants, respectively, may move for summary judgment “with or without 

supporting affidavits..” The import of these subsections is that, regardless of whether the 

moving party accompanies its summary judgment motion with affidavits, the motion may, and 

should, be granted so long as whatever is before the district court demonstrates that the 

standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. One of the 

principal purposes of the summary judgment rule is to isolate and dispose of factually 

unsupported claims or defenses, and we think it should be interpreted in a way that allows it 

to accomplish this purpose. Id. (citations omitted).

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 6 of 16 PageID #:52277
7

The import of this rule is that a civil defendant need only state that no evidence exists to 

support some point or another in order to shift the burden back to a plaintiff to show that he or she 

is wrong by actually showing the affirmative existence of such evidence; no other obligation 

whatsoever is required. See e.g. Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir.2013)(defendant’s 

burden on summary judgment “may be discharged by showing—that is, point[ing] out to the district 

court—that there is an absence of evidence to support the nonmoving party’s case.”); Wrenn v. Exelon 

Generation LLC, 2021 WL 2222677, *8 (N.D.Ill., 2021)(“Because the movant on summary judgment 

need only show that there is ‘an absence of evidence to support the nonmoving party’s case,’ ExGen 

has met its burden of production.”). Contrary to Plaintiff’s suggestion about Defendant Guevara 

failing to provide sufficient affirmative evidence supporting his arguments to shift the burden back to 

Plaintiff, the Supreme Court holds that Defendant Guevara does not need to do anything other than 

generally say Plaintiff cannot support some fact or another. Id. The burden then shifts back to Plaintiff 

to affirmatively prove Defendant Guevara wrong with actual evidence. Id. If Plaintiff cannot do so, 

he loses, plain and simple. Id.

The second contention advanced by Plaintiff on this point is that a civil defendant who invokes 

his Fifth Amendment Rights is not entitled to rely on the same evidentiary standards outlined by the 

United States Supreme Court in Celotex because he has deprived a plaintiff of evidence as a result of 

this invocation. Dckt. No. 341 at 34-37. Specifically, Plaintiff asserts that invocation of one’s Fifth 

Amendment Rights on a fact or issue should itself alone create an issue of fact rendering summary 

judgment unavailable. Id. at 34-36 (“Applied to this case, this Court must draw the adverse inference 

at summary judgment against Guevara on those material facts about which he has asserted his Fifth 

Amendment rights, and so Guevara cannot satisfy his burden of showing there are no disputes of 

material fact at this stage.”). Plaintiff’s counsel is well-aware that this is not the law and that applying 

such a rule would not only overrule decades of established law but would be unconstitutional. Indeed, 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 7 of 16 PageID #:52278
8

this exact argument is one that these same plaintiff’s attorneys have been peddling to district courts

without success for years, including in cases involving Defendant Guevara.

On this point, Plaintiff briefly takes a stab at attempting to convince this Court that there is 

some split in the law on this issue and that Courts have occasionally followed their reasoning. See Dckt. 

No. 341 at 36 n. 5 (“And the rule is not so simple in the case law. In some circumstances, parties are 

granted judgment merely because the opposing party has asserted their Fifth Amendment rights.”) 

citing Lyons v. Johnson, 415 F.2d 540, 541 (9th Cir. 1969); United States v. $39,000.00 in U.S. Currency, 951 

F.3d 740, 742 (6th Cir. 2020). This is a wildly misleading and erroneous argument. The cases cited 

concern plaintiffs/claimants who have invoked their Fifth Amendment Rights in cases that they have 

brought and bear the burden of proof. The law on this topic is decidedly (and obviously) quite 

different in those instances and for good reason. See Crandall v. Hard Rock Cafe Intern.(Chicago)Inc., 2000 

WL 782938, at *2 (N.D.Ill. 2000)(“When presented with issues of this genre, courts have fashioned 

divergent outcomes, which turn on the status of the party asserting his Fifth Amendment right. For 

civil defendants, courts may not ignore the other evidence at bar and grant summary judgment against 

a defendant based exclusively upon him exercising his Fifth Amendment right. Civil plaintiffs, 

however, are subject to a different treatment. The prevailing view in this District and the Seventh 

Circuit is that a plaintiff may not invoke his privilege against self-incrimination to refuse to answer 

questions that are relevant to the issues of his claim.”); Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 

141 (W.D.Wis.1968) aff’d 416 F.2d 967 (7th Cir.1969)(“[A] plaintiff in a civil action who exercises his 

privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will 

have his complaint dismissed upon timely motion.”); Dimensions Medical Center, Ltd. v. Principal Financial 

Group, Ltd., 1996 WL 494229 (N.D.Ill. 1996); Hiley v. United States, 807 F.2d 623, 628 (7th 

Cir.1986)(“[A] plaintiff, who initiates a civil action but refuses to present evidence, cannot then prevail 

on the merits with regard to those issues on which he bears the burden of proof.”). A plaintiff bears

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 8 of 16 PageID #:52279
9

the ultimate burden of proof in the case they have brought. Id. The Courts rightly hold that a plaintiff 

may not simultaneously seek affirmative relief while at the same time refusing to provide evidence on 

the claims they brought. Id. A civil defendant, on the other hand, need not ever produce a single piece 

of evidence at trial (much less on summary judgment) and, if no such evidence is ever introduced, the 

court is required to enter judgment in such defendant’s favor as a rule. 

Despite making a half-hearted attempt to convince this Court that the law might be on his 

side, what is really afoot in Plaintiff’s Response is a naked attempt to enlist this Court in overruling 

decades of jurisprudence from the Supreme Court, the Seventh Circuit, and every district court to pass 

on the matter which hold that a civil defendant’s invocation of his or her Fifth Amendment Rights 

standing alone is not itself evidence of any fact and that a plaintiff attempting to avail himself of an 

adverse inference from such an invocation must first affirmatively introduce other evidence to support 

the existence/non-existence of such fact. See Dckt. No. 341 at 35-37. Plaintiff eventually admits that 

this is precisely what the courts have held but suggests that all of these courts “incorrectly decided” 

this issue and that they all “depart from established law.” Dckt. No. 341 at 35-36. 

Beyond making such a bold proclamation that decades of case law have “depart[ed] from 

established law,” Plaintiff offers zero legal support for this argument and cites no case supporting the 

“established law” he claims is at issue. Dckt. No. 341 at 31-37. This is because none exists. Every case

on the matter has held that a civil defendant who invokes his Fifth Amendment Rights during 

discovery may move for summary judgment based on the absence of evidence and that this must be 

granted by the Court if a plaintiff fails to provide evidence to support a claim other than the 

defendant’s invocation. See LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 

1995)(“[s]ilence is a relevant factor to be considered in light of the proffered evidence, but the direct 

inference of guilt from silence is forbidden.”); National Acceptance Co. of Am. v. Bathalter, 705 F.2d 924 

(7th Cir. 1983); Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 675 (5th Cir. 1999)(“[T]he adverse inference 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 9 of 16 PageID #:52280
10

from a party’s refusal to answer questions was not enough to create an issue of fact to avoid summary 

judgment.”); Avirgan v. Hull, 932 F.2d 1572, 1580 (11th Cir. 1991)(“Invocation of the fifth amendment 

privilege did not give rise to any legally cognizable inferences sufficient to preclude entry of summary 

judgment. The negative inference, if any, to be drawn from the assertion of the fifth amendment does 

not substitute for evidence needed to meet the burden of production.”); Wrice v. Burge, 2020 WL 

419419, *2 (N.D.Ill., 2020)(granting summary judgment to invoking defendant and holding that a 

claim against an invoking defendant “cannot survive unless he can identify evidence, in addition to 

[the invoking defendant’s] silence [to support such claim].”); Rivera v. Guevara, 2018 WL 11468922, *1 

(N.D.Ill. 2018)(“Here permissive means that ‘[s]ilence is a relevant factor to be considered in light of 

the proffered evidence, but the direct inference of guilt from silence is forbidden.’”); Kluppelberg v. 

Burge, 2017 WL 3142757, *4 (N.D. Ill. 2017)(“[T]he non-movant must point to some evidence in 

addition to defendant’s silence to avoid summary judgment”); Ruiz-Cortez v. City of Chicago, 2016 WL 

6270768, *7 (N.D.Ill. 2016)(“[S]ilence, and adverse inferences drawn from it, cannot be the sole basis 

for finding liability.”); Logan v. City of Chi., 891 F. Supp. 2d 897, 901 (N.D. Ill. 2012)(“[A] party’s refusal 

to answer questions during discovery is not enough to create an issue of fact to avoid summary 

judgment.”); Cincinnati Ins. Co. v. Greene, 2012 WL 3202962 at *3 (N.D. Ind. 2012)(before an adverse 

inference may be drawn, “there must be independent corroborative evidence to support the negative 

inference beyond the invocation of the privilege.”); Barker v. International Union of Operating Engineers 

Local 150, 2011 WL 6338800, *6 (N.D.Ill. 2011)(“[A]n adverse inference based on silence pursuant to 

the assertion of the Fifth Amendment privilege is insufficient by itself to create an issue of material 

fact precluding summary judgment”); McArdle v. Peoria School Dist. No. 150, 833 F.Supp.2d 1020, 1030 

(C.D.Ill. 2011)(“While adverse inferences may be drawn against a party who invokes her Fifth 

Amendment rights against self-incrimination, this privilege may not preclude summary judgment 

where the elements of the case were not met...In this case, Plaintiff cannot establish a genuine issue 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 10 of 16 PageID #:52281
11

of material fact that Davis or the District violated her First Amendment rights other than Davis' 

invocation of her privilege against self-incrimination.”); Thompson v. City of Chi., 2009 WL 674353, *3 

(N.D.Ill. 2009); Hawkins v. St. Clair Cty., 2009 WL 559373, *5 (S.D. Ill. 2009); Cho v. Holland, 2006 WL 

2859453, *6 (N.D. Ill. 2006); Evans v. City of Chicago, 2006 WL 463041, *6 (N.D. Ill. 2006); FTC v. 

Consumer Alliance, Inc., 2003 WL 22287364, at *3–4 (N.D. Ill. 2003); City of Chicago v. Reliable Truck Parts 

Co., 822 F.Supp. 1288, 1293–94 (N.D. Ill. 1993)(defendants who invoked Fifth Amendment privilege 

did not lose the ability to contest other evidence supporting plaintiff's motion for summary judgment).

Plaintiff’s baseless attempt to seduce this court into overruling decades of law is a tactic that 

his attorneys have been attempting without success for years including in cases involving Defendant 

Guevara. See Rivera, 319 F.Supp.3d 1004. Indeed, the baseless nature of this exact argument was 

meticulously set forth by Judge Gotschall in Rivera v. Guevara:

Rivera “acknowledges that courts may not enter judgment based solely on an invocation of 

the Fifth Amendment,” but he nevertheless argues that Guevara cannot win at summary 

judgment because Guevara has invoked his Fifth Amendment right to be silent. Rivera reasons 

that a defendant who invokes his right to remain silent in a civil case deprives the plaintiff of 

an important source of proof. Without a rule requiring denial of summary judgment, a 

defendant in Guevara’s position would be able to use the Fifth Amendment to “shift the 

burden at summary judgment” to the plaintiff.

The Seventh Circuit balanced the tradeoffs in civil cases of requiring proof of liability other 

than a party’s reliance on the Fifth Amendment privilege in its first case applying Baxter [v. 

Palmigiano, 425 U.S. 308 (1976)]:

Inevitably, in civil cases where related criminal charges are involved, tension will arise 

between plaintiffs’ rights to a just and timely adjudication and defendants’ rights to 

refuse to answer under the Fifth Amendment upon a reasonable fear of prosecution. 

At the least, defendants may not be free to defend the suit as they would like, while 

plaintiffs may be prevented from acquiring evidence helpful, or even necessary, to their 

case. That tension is not for us to resolve, for it has its sources in the Constitution 

itself...

Courts in the Seventh Circuit have accordingly held that to create a fact issue for trial, a party 

resisting summary judgment cannot rely exclusively on the moving party's invocation of the 

Fifth Amendment privilege. This court agrees with the reasoning of those decisions.

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 11 of 16 PageID #:52282
12

Requiring other evidence does not shift Guevara’s summary judgment burden to Rivera. If 

the plaintiff will bear the burden of persuasion at trial, Guevara’s initial summary judgment 

obligation is satisfied “by showing—that is, pointing out to the district court—that there is an 

absence of evidence to support the nonmoving party’s case.” Guevara did not need to 

“support [his] motion with affidavits or other similar materials negating the opponent's 

claim.”..Under Baxter, LaSalle Bank, and a host of district court cases in this circuit, defendants’

motions for summary judgment cannot be denied solely because Guevara has exercised his 

Fifth Amendment right to remain silent any more than the question of liability for damages 

could be sent to the jury on that basis alone. Instead, Rivera must identify additional evidence 

that would permit the jury to impose liability. Id. (citations omitted).

In another case involving these same attorneys and an invoking police officer defendant (Jon 

Burge), Judge Lefkow again held that this argument was without basis and granted the invoking 

defendant summary judgment. Kluppelberg, 2017 WL 3142757 at *4-5. The court explained:

When a defendant has invoked his Fifth Amendment right against self-incrimination, as Burge 

has consistently done during this case, adverse factual inferences may be drawn from the 

choice to remain silent. At the same time, a plaintiff may not rest solely on the defendant’s 

assertion of privilege to establish liability based on refusal to answer a complaint or to testify 

at a disciplinary hearing if there is no other evidence supporting liability. Burge relies on this 

doctrine, not to establish liability, but to be exonerated from it, contending that there is no 

other evidence in the record from which a reasonable jury could infer liability.

To prevent the case from going to the jury undermines the jury’s ability to draw adverse 

inferences that could establish the elements of the claim. Nonetheless, the courts that have 

addressed the issue in the context of a defendant’s seeking summary judgment have held that 

the non-movant must point to some evidence in addition to defendant’s silence to avoid 

summary judgment...With regard to Burge’s personal knowledge of the New File,...the only 

evidence Kluppelberg can point to is Burge’s silence. Because “the direct inference of guilt 

from silence is forbidden,” this is insufficient to avoid summary judgment. Id.

Without any legal authority on his side, Plaintiff instead offers convoluted analogies and 

ponderous hypotheticals designed to critique the fairness or practicality of the rule:

Consider the question this way: Suppose there were a blanket rule that judgment cannot be 

entered against a party merely because that party has asserted the Fifth Amendment privilege. 

This rule would not justify the conclusion that a summary judgment motion filed by a party 

asserting the privilege cannot be denied on that basis. Entering a judgment against a party who 

asserts the Fifth is much different than denying a motion for summary judgment filed by a 

party who asserts the Fifth. The former situation imposes a high cost for asserting the Fifth 

Amendment and ends the litigation; the latter merely requires the party asserting the Fifth to 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 12 of 16 PageID #:52283
13

face a trial. In response to Johnson’s motion, Guevara was in the former situation; now that 

he has moved for summary judgment against Johnson, he is in the latter.

See Dckt. No. 341 at 35-36. It is difficult to track what exactly Plaintiff is arguing here other than

simply bemoaning the unfairness of treating civil defendants who invoke differently than civil plaintiffs

and arguing that there should be essentially an “automatic trial penalty” against any civil defendant for 

have the temerity to actually insist upon using the rights that the Constitution affords him. Id.

Once again, as Plaintiff’s counsel is well-aware, this exact attempt to create ambiguity by 

relying on the differing procedural postures of a defendant moving for summary judgment versus a 

defendant defending against one has been explicitly rejected. See Logan, 891 F.Supp.2d at 901. In Logan

(another one of Plaintiff’s counsel’s other cases), this exact argument was rejected by Judge Bucklo:

Plaintiff argues that the facts of the case in front of me are distinguishable from the facts in 

other civil cases to have dealt with the issue of a party’s invocation of the Fifth Amendment 

privilege. Specifically, plaintiff contends that the case law does not adequately address the 

situation which presents itself here: defendants invoke their Fifth Amendment privilege during 

discovery and then turn around and seek summary judgment, asserting that the plaintiff has 

no evidence on which to base his claims. The posture of this case is, indeed, different from 

that in Seguban, where the movant was the plaintiff and the nonmovants invoked their Fifth 

Amendment rights. But in that case, the Seventh Circuit also recognized that one party's 

silence will inevitably disadvantage the party's opponent, whose case suffers from the inability 

to obtain discovery. 

At least two circuit courts [Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 675 (5th Cir.1999) and 

Avirgan v. Hull, 932 F.2d 1572, 1580 (11th Cir.1991)] have concluded that a party's refusal to 

answer questions during discovery is “not enough to create an issue of fact to avoid summary 

judgment.” The holdings of Curtis and Avirgan comport with the reasoning of Seguban, which 

noted that allowing an adverse inference to supplant the burden of production would “place 

too high a cost” on a party’s exercise of its Fifth Amendment privilege. Even in the case before 

me, then, where Logan has been disadvantaged by the failure of defendants Burge, Basile, 

McKenna, Pienta, and DiGiacomo to answer questions during their depositions, plaintiff must 

come forward with some other evidence of defendants’ involvement in his injuries. Id.

(citations omitted).

Despite Plaintiff’s efforts to complicate this issue by offering confusing analogies and fairness 

complaints, this is actually a very simple issue to resolve and not one limited to circumstances where 

a defendant has invoked his Fifth Amendment Rights. This issue is one which strikes at the heart of 

the burden of proof applicable in civil cases and the entire purpose of Rule 56 in the first place. 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 13 of 16 PageID #:52284
14

Whether a defendant invokes his Fifth Amendment Rights or there is some other reason for the 

absence of evidence from the record, courts are not allowed to simply order a trial to proceed without 

a plaintiff affirmatively showing that he will be able to introduce actual evidence supporting his claims 

to satisfy the burden of proof. Celotex, 477 U.S. at 322-23. In other words, the focus is always on what 

the plaintiff has produced not on what the defendant has not produced. Id. The absence of evidence at 

the summary judgment stage, means a plaintiff’s case is over. Id. There is no exception for proof buried 

within the inference from a defendant’s decision to invoke his constitutional rights. 

Nor is there any basis (legal, logical, or otherwise) to impose a “automatic trial penalty” on a 

defendant who has invoked. That is precisely what Rule 56 is designed to preclude in the first instance. 

Summary judgment is routinely referred to as the “put up or shut up” moment in a lawsuit. See e.g. 

Brown v. CACH, LLC, 94 F.4th 665, 667 (7th Cir. 2024)(“Summary judgment is the ‘put up or shut 

up’ time in litigation.”). If Plaintiff has evidence to support a contention on which Defendant Guevara 

has invoked his Fifth Amendment Rights, now is the time he must show his cards. But, if he does not 

show the court this evidence now, a trial is not allowed, period. 

There is no effective evidentiary difference between a court entering summary judgment for a 

defendant when there is no evidence to support certain claims and entering a directed verdict for this 

same defendant at trial when the same dearth of evidence reveals itself there. See Celotex, 417 U.S. at 

323 quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)(“[T]h[e] standard [for granting 

summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 

50(a)....”). If Plaintiff proceeded to trial and failed to support a claim with evidence other than pointing 

to Defendant Guevara’s invocation, this Court would obviously be required to enter a directed verdict. 

Forcing a jury to sit through a trial which would fail to produce affirmative evidence (and, thus, result 

in a directed verdict) does not just penalize an invoking defendant but, rather, penalizes the jury, the 

judge, and the entire judicial system by wasting resources putting on a “show trial” which is doomed 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 14 of 16 PageID #:52285
15

from the start. This is the entire purpose for courts ruling on summary judgment motions instead of 

sending every case to a jury trial. 

Indeed, the distinction that Plaintiff seeks to make with his convoluted hypothetical is exactly 

what Seguban and National Acceptance held were not allowed. In both cases, the Seventh Circuit explicitly 

held that a court was not permitted to bypass an analysis of the evidence supporting a plaintiff’s claims 

merely because an opposing party had invoked his Fifth Amendment Rights to provide affirmative 

evidence on the claim. Seguban, 54 F.3d at 389–92 (“[T]he defendant’s silence be weighed in light of 

other evidence rather than leading directly and without more to the conclusion of guilt or 

liability...[A]lthough ‘the Fifth Amendment does not forbid adverse inferences against parties to civil 

actions when they refuse to testify in response to probative evidence offered against them’, an analysis 

of that evidence is nonetheless required...”); National Acceptance Co. of Am., 705 F.2d 924 (“It is our 

best judgment, in the light of Baxter, that even in a civil case a judgment imposing liability cannot rest 

solely upon a privileged refusal to admit or deny at the pleading stage. We conclude that defendant's 

claim of privilege should not have been deemed an admission, and that plaintiff should have been put 

to its proof, either by way of evidentiary support for a motion for summary judgment or at trial.”). In 

fact, Seguban held that doing otherwise would not only be improper but, indeed, unconstitutional. Id.

at 391-92 (noting that using Fifth Amendment invocation as affirmative evidence “without regard to 

the other evidence” supporting the existence of the facts sought to be established “exceeds 

constitutional bounds.”) citing Baxter, 425 U.S. at 318; U.S. v. White, 589 F.2d 1283 (5th Cir. 1979). 

Simply stated, this Court should follow every other case adjudicating this issue and reject 

Plaintiff’s years long crusade to attempt to get a district court to “bite” on their baseless attempts to 

overrule decades of established legal precedent. Regardless of his decision to use the rights that the 

Constitution of the United States grants him, Defendant Guevara is entitled to summary judgment in 

this case for the reasons set forth in the briefs.

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 15 of 16 PageID #:52286
16

WHEREFORE Defendant Reynaldo Guevara prays this Court enter summary judgment in 

his favor and against Plaintiff and for whatever other relief this Court deems fit.

Respectfully submitted,

BORKAN & SCAHILL, LTD.

By: /s/ Timothy P. Scahill

 Timothy P. Scahill

Steven B. Borkan 

Timothy P. Scahill

Special Assistants Corporation Counsel

Borkan & Scahill, Ltd.

20 South Clark Street

Suite 1700

Chicago, IL 60603

(312)580-1030

Attorneys for Reynaldo Guevara 

Case: 1:20-cv-04156 Document #: 361 Filed: 08/09/24 Page 16 of 16 PageID #:52287