IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEMETRIUS JOHNSON,

Plaintiff,

v.

REYNALDO GUEVARA, the ESTATE of 

ERNEST HALVERSON, DARRYL DALEY, 

WILLIAM ERICKSON, JOHN HEALY, and 

the CITY OF CHICAGO

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No. 20-cv-4156

 Judge Sara L. Ellis

Magistrate Judge Heather K. McShain

JURY TRIAL DEMANDED

EXHIBIT 1

PLAINTIFF’S CONSOLIDATED RESPONSE IN 

OPPOSITION TO DEFENDANTS’ MOTIONS 

REGARDING SUMMARY JUDGMENT

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 1 of 31 PageID #:9627
IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEMETRIUS JOHNSON,

 

Plaintiff, 

v.

REYNALDO GUEVARA, the ESTATE of 

ERNEST HALVERSON, DARRYL DALEY, 

WILLIAM ERICKSON, JOHN HEALY, and 

the CITY OF CHICAGO

Defendants. 

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

 Case No. 20 cv 4156 

 Judge Sara L. Ellis 

Magistrate Judge Heather K. McShain

JURY TRIAL DEMANDED

 

PLAINTIFF’S CONSOLIDATED RESPONSE IN

OPPOSITION TO DEFENDANTS’ MOTIONS REGARDING SUMMARY JUDGMENT

Arthur Loevy 

Jon Loevy 

Anand Swaminathan 

Steven Art

Sean Starr

Alyssa Martinez

LOEVY & LOEVY

311 North Aberdeen St., 3rd Fl. 

Chicago, IL 60607 

(312) 243-5900 

alyssa@loevy.com 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 2 of 31 PageID #:9628
TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................................... i 

INTRODUCTION ...........................................................................................................................1 

DISCUSSION ..................................................................................................................................2 

A. Defendants’ Repeated Delays Should Not Be Rewarded ....................................................2 

B. Plaintiff’s Exhaustive Efforts to Respond Quickly, Substantively, and Repeatedly to 

Defendants’ Proposed Joint Statements of Fact...................................................................7 

1. Plaintiff’s Contributions to the City’s Proposed Undisputed Facts .........................7 

2. Plaintiff’s Efforts Comply with the Court’s Orders and the Rules ........................15 

3. Plaintiff’s Contributions to the Individual Defendants’ Proposed Undisputed Facts 

................................................................................................................................21 

C. The Parties’ Conferrals on the Joint Statement of Fact Demonstrate That Defendants 

Have No Basis to Move for Summary Judgement .............................................................23 

CONCLUSION ..............................................................................................................................26 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 3 of 31 PageID #:9629
i 

Table of Authorities

Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010) .........................................26

Fields v. City of Chicago, No. 10 C 1168 (N.D. Ill.) .....................................................................13 

Harpold v. Ethicon Endo–Surgery, Inc., No. 1:06–cv–1666–DFH–DML, 2009 WL 688984 ......18 

Jones v. City of Chicago, No. 87 C 2536 (N.D. Ill.) ......................................................................13 

Palmer v. City of Chicago, 562 F. Supp. 1067 (N.D. Ill.) .............................................................13 

Rivera v. Guevara, No. 12 C 4428 (N.D. Ill.)............................................................................7, 13 

Scott v. Edinburg, 346 F.3d 752, 759 (7th Cir.2003) ....................................................................18 

Treadwell v. McHenry Cnty., Illinois, 193 F. Supp. 3d 900, 903 (N.D. Ill. 2016) ........................18 

Other Authorities

Local Rule 56.1 ..............................................................................................................................16 

Rules

Standing Order ........................................................................................................................ passim

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 4 of 31 PageID #:9630
1

Plaintiff, DEMETRIUS JOHNSON, by his attorneys, responds in opposition to the 

individual Defendants’ motion for an extension of time, Dkt. 290, and the City of Chicago’s 

motion to deem facts admitted at summary judgment, Dkt. 292, stating as follows:

INTRODUCTION

One week before the final and already thrice-extended deadline for summary judgment 

filings in this case, Defendants have filed motions asking the Court for relief that is plainly not 

warranted. Defendants’ consistent efforts to delay resolution of this case should not be rewarded. 

Defendants have caused repeated delays in moving this case to trial, and they have now 

engineered a situation where it is impossible for them to comply with the Court’s Standing Order 

and the Rules governing summary judgment before filing a summary judgment motion by the 

Court’s final deadline. Had Plaintiff engaged in the same behavior, his option to move for 

summary judgment would be off the table. The same should be true for Defendants.

Meanwhile, despite Defendants’ delays, Plaintiff has worked tirelessly to respond quickly 

and substantively to Defendants’ proposed statements of fact, providing detailed comments, 

additions, corrections, and objections. Indeed, since Defendants first sent their proposed facts 

late in the afternoon of the last business day before the Christmas holiday, the City has not 

engaged whatsoever in providing a substantive response to Plaintiff’s contributions to the joint 

statement of facts. Plaintiff’s contributions comply with the Court’s Standing Order and the 

Local Rules, and the City’s arguments otherwise lack merit. This Court should deny the City’s 

request that its facts be deemed admitted because the City has not engaged at all in the process 

and has instead simply run out the clock.

Finally, as Plaintiff has stressed repeatedly, this is not a summary judgment case for any 

of Defendants on any claim. Plaintiff already moved for summary judgment against Defendant 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 5 of 31 PageID #:9631
2

Guevara. Dkt. 210. That motion was denied, Dkt. 273, and the disputes of fact that the Court 

found warranted a trial persist today and preclude a motion for summary judgment brought by 

the other side. Even if there had not been a summary judgment decision already, there are 

numerous material disputes of fact about the individual Defendants’ liability for Plaintiff’s 

wrongful conviction, as the individual Defendants’ proposed joint statement of facts shows. 

For its part, the City’s effort to move for summary judgment is frivolous. The City has 

lost the Monell theories at issue in this case in at least two recent federal jury trials and has been 

precluded from litigating them in at least one; those decisions have been affirmed post-judgment 

by multiple district judges and have been affirmed by the Seventh Circuit. Even if it were not 

precluded, there is no universe in which the City can establish there is no material dispute of fact 

on these Monell theories. This is the reason that Plaintiff offered a compromise to narrow the 

case and avoid the need for exhaustive summary judgment proceedings.

The Court should deny Defendants’ motions and either proceed to trial in this case or 

order Defendants to rely on only the actually agreed material facts, and file their summary 

judgment motions on the January 31 final deadline set by the Court.

DISCUSSION

A. Defendants’ Repeated Delays Should Not Be Rewarded

Defendants have repeatedly delayed summary judgment in this case. In November 2023, 

this Court granted a final extension of their deadline to file summary judgment motions. Then, 

Defendants delayed again, and now find themselves in a position of their own creation, where 

they cannot timely file their motion for summary judgment in compliance with this Court’s 

procedures. This Court’s Standing Order provides, “Parties should provide the Court with 

sufficient time to rule on factual disputes before summary judgment motions are due.” 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 6 of 31 PageID #:9632
3

Defendants have not done that, and they should not be granted an additional extension beyond 

the final extension. At some point, Defendants’ persistent delays and efforts to help themselves 

to extensions to delay resolution of this case should be reigned in, to ensure actual compliance 

with the Court’s orders, and to prevent any further prejudice to Plaintiff, who waits anxiously for 

his day in court.

The procedural history is set out in detail in Plaintiff’s response to Defendants’ last 

motion for an extension of time. Dkt. 286. To recap, fact discovery closed in December 2022. In 

January 2023, the Court set an expert and summary judgment schedule, making Defendants’ 

motions due August 28, 2023. Defendants first moved to extend that deadline on May 1, 2023, 

Dkt. 244, and for a second time on May 26, 2023, Dkt. 255, and this Court granted both motions, 

ultimately setting November 3, 2023, as the summary judgment deadline. Dkts. 246 & 258. At 

that point, Defendants had 11 months from the close of fact discovery and six months from the 

completion of Plaintiff’s experts’ depositions to draft and file motions for summary judgment.

Starting in August 2023, Plaintiff corresponded with Defendants at length about (a) 

narrowing the parties and claims for summary judgment, (b) Plaintiff’s view that summary 

judgment is not warranted in this case, and (c) Defendants’ draft of the proposed joint statements 

of fact necessary to comply with the Court’s Standing Order. Plaintiff asked for Defendants’ 

proposed statements of fact repeatedly at the end of October 2023, but he never received a draft 

of a joint statement of facts, despite the November 3, 2023 deadline for Defendants’ motion for 

summary judgment.

Instead, on November 3—the day their summary judgment motions were due—and 

without conferring with Plaintiff, Defendants moved for a third extension of time to file their 

motions for summary judgment, representing to the Court that they needed a modest amount of 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 7 of 31 PageID #:9633
4

time to complete the summary judgment process. Dkt. 283. Plaintiff opposed the motion 

strenuously. Dkt. 286. The Court granted Defendants a third and final extension, setting January 

31, 2024, as the due date for summary judgment motions. Dkt. 288. During the hearing on that 

motion, Plaintiff expressed concern that Defendants were perpetually delaying resolution of the 

case, and the Court made clear that January 31, 2024 was the final deadline. 

But Defendants’ delay continued after that ruling. Instead of promptly providing Plaintiff 

with a proposed joint statement of facts in response to his requests or engaging with Plaintiff in 

further efforts to narrow the case at summary judgment, Defendants did not contact Plaintiff at 

all. Instead, late in the afternoon of Friday, December 22, 2023, the last business day before the 

Christmas holiday, Defendants sent two separate proposed joint statements of fact—one from the 

City and one from the individual Defendants—which totaled 296 paragraphs. Defendants 

provided these proposed facts more than two months after Plaintiff began requesting them, more 

than five weeks after the Court granted their third extension of time, and right before Christmas 

Eve. Plaintiff’s counsel were out with their families between Christmas and New Year’s Day and 

their office was closed. 

On January 2, 2024, Plaintiff’s counsel began the process of responding to Defendants’ 

proposed facts. Just two weeks later, on January 16 and 17, Plaintiff provided detailed responses 

to the City and individual Defendants, respectively. Contrary to the City’s statement that Plaintiff 

did not provide the City with any exhibits, see Dkt. 292-1, Mot. at 9, Plaintiff attached all 

exhibits to its correspondence with the City. See Dkt. 292-3 (Jan. 17, 2023 Email 

Correspondence, at 9-10). Still there was time to reach agreement on the joint statements of fact. 

On January 19, the individual Defendants provided a second round of responses to Plaintiff’s 

additions, edits, and objections to that joint statement of facts. Plaintiff responded promptly again 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 8 of 31 PageID #:9634
5

on January 22. The individual Defendants sent another version on January 22, 2024, about which 

the parties conferred. Plaintiff committed to providing another response on January 23, 2024, 

which would have resolved the issues. 

The City, by contrast, did nothing with Plaintiff’s additions, edits, and objections to the 

City’s proposed statement of facts. Instead, at the end of the day on Friday, January 19, the City 

sent a letter to Plaintiff, complaining that Plaintiff’s edits and objections did not comply with the 

Rules. The letter did not contain any substantive response to any of the edits, additions, 

comments, or objections that Plaintiff had spent two weeks on. It simply demanded that Plaintiff 

do another draft. 

Plaintiff responded on Monday, January 22, with a detailed letter. Exhibit A (Jan. 22, 

2024 Letter from Plaintiff’s Counsel). Plaintiff explained his position about the timing and 

explained that he had complied with this Court’s Standing Orders and the Local Rules. In the 

interest of not further delaying the case, Plaintiff proposed a number of compromises to narrow 

disputes and responded to particular complaints that the City identified. On the same day, 

Plaintiff provided a second round of additions, edits, and objections to the City, even though the 

City still had not responded to the first. See Exhibit B (Plaintiff’s Second Revised JSOF with 

City); Exhibit C (Jan. 22, 2024 Correspondence from Gould to the City).

Still, the City did not engage substantively with Plaintiff’s draft. Instead, on January 22, 

the City and Plaintiff met and conferred. The City admitted that it had not looked at Plaintiff’s 

draft, said that conferring was pointless, and continued to suggest that Plaintiff was violating the 

Rules (even though the City had not read the draft). The City rejected wholesale Plaintiff’s 

proposed compromises within its letter and stated its intention to file this motion instead. In 

response, Plaintiff again explained his position, and he asked the City to engage substantively in 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 9 of 31 PageID #:9635
6

the process of reaching agreement on a joint statement of facts. Instead of doing so, Defendants 

filed their motion. As of the date of this filing, Plaintiff still has not received any substantive 

response to his edits and comments on the City’s joint statement of facts.1

Defendants have engaged in months of delay at summary judgment in this case. This 

Court already granted them a final extension of time to file a motion. Yet for months, they failed 

to provide a proposed joint statement of fact, defying this Court’s Standing Order that parties 

exchange and identify disputes of fact far in advance of summary judgment and with enough 

time for the Court to consider disputes. Indeed, by providing first drafts of lengthy joint 

statements of fact on the eve of the Christmas holiday, four weeks before their motions were due, 

they all but ensured that there would not be sufficient time for the Court to rule on any disputes. 

They then refused to engage in the process of responding to Plaintiff's edits to those joint 

statements when Plaintiff’s counsel moved heaven and earth to turn around responses in two 

weeks. Instead, Defendants now complain that it took Plaintiff two weeks to respond to almost 

three hundred paragraphs of facts (most of which are clearly disputed), despite Defendants 

having taken eleven months since the close of fact discovery to draft a joint statement of facts.

1 Compare Defendants’ approach to that taken by Plaintiff when Plaintiff moved for summary 

judgment, where the joint statement of facts was provided to Defendants months in advance, and then 

Defendants delayed responding. In July 2022, Plaintiff notified Defendants of his intention to file a 

motion for partial summary judgment against Defendant Guevara on his Brady claim. Dkt. 164-1. 

Plaintiff’s letter included a 53-paragraph proposed joint statement of facts per this Court’s rules. Id. In 

August 2022, counsel for all parties participated in a phone conference in which Defendants refused to 

confer on the proposed joint statement of facts. The briefing schedule was pushed back repeatedly as the 

result of Defendants’ delays in responding to Plaintiff’s proposed joint statement of facts. Dkt. 223. Due 

to those delays, Plaintiff was not able to file his partial motion for summary judgment until February 21, 

2023—more than seven months after he first sent his proposed joint statement of facts to Defendants. 

Dkt. 210.

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 10 of 31 PageID #:9636
7

Plaintiff is entitled to his day in Court. This Court is entitled to compliance with its 

Standing Orders. And Defendants cannot be allowed to continually delay the resolution of this 

case. For that reason alone, this Court should deny Defendants’ motions and set the case for trial. 

B. Plaintiff’s Exhaustive Efforts to Respond Quickly, Substantively, and Repeatedly to 

Defendants’ Proposed Joint Statements of Fact

The Court should also reject Defendants’ contentions that Plaintiff has not engaged in the 

joint statement process in good faith. Plaintiff has complied with this Court’s Standing Orders 

and the Local Rules; he has provided fulsome explanations of his edits and objections to the 

proposed joint statements, which are supported by identified evidence; and he has done so 

quickly and thoroughly. Defendants’ arguments otherwise lack merit.

1. Plaintiff’s Contributions to the City’s Proposed Undisputed Facts

The City provided 164 proposed agreed facts regarding the Monell claim. Plaintiff’s 

initial review of Defendants’ facts confirmed one thing: that most facts on summary judgment 

related to Plaintiff’s Monell claims are hotly disputed. In fact, a sizable portion of the City’s 

proposed agreed facts appear to have been copied and pasted from the City’s affirmative 

statement of facts submitted in support of its motion for summary judgment in Rivera v. 

Guevara, No. 12 C 4428 (N.D. Ill.), a case in which the same Monell theories at issue here were 

tried to a jury, resulting in a Monell verdict against the City. That was startling. The City knows 

that those facts were hotly contested in Rivera, and that the Court there denied summary 

judgment to the City, after which the City lost at trial, which was affirmed in the denial of its 

post-trial motion. The City had therefore submitted a first draft of facts that it knew for certain 

was contested in every respect. Still, the City’s proposed facts went to great lengths to

characterize these disputed facts as undisputed, which required serious attention to detail and 

significant modifications to most offered facts. 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 11 of 31 PageID #:9637
8

As previously stated, Plaintiff provided those significant edits to the City’s alreadylengthy document on January 17, 2024. See Ex. D (First Revised JSOF to City). After the City 

responded without substantive comments but instead with a letter, Plaintiff still went to great 

lengths to reach compromise, addressing the issues that the City identified in its letter, and 

making proposals for narrowing disputes. Ex. A (Jan. 22, 2024 Letter to City). In particular, in 

response to the City’s complaint about paragraphs being removed without explanation, Plaintiff 

recognized that the problem was a formatting issue, and he reformatted the document so that the 

City could see his objections below the paragraphs (instead of in comments in the margins). Ex. 

B (Second Revised JSOF to City). In addition, Plaintiff provided additional details supporting 

objections and additional edits where the City had misquoted evidentiary sources. Id. Moreover, 

following the parties’ meet and confer yesterday, still endeavoring to provide the City with clear 

objections so that it could finally respond substantively to Plaintiff’s edits and modifications, 

Plaintiff again provided a revision to paragraphs specifically identified during the call as lacking 

detail. See Exhibit E (Jan. 22, 2024 Correspondence from S. Art to City); Exhibit F (Third 

Revised JSOF to City).2

Plaintiff is frankly surprised at the City’s response to his detailed effort to create a final 

product in the face of Defendants’ delay. Plaintiff has repeatedly attempted to compromise and 

provide detail and explanation in response to the City’s initial submission, letter, and meet and 

confer, all without any substantive response from the City. Plaintiff has gone to great lengths to 

provide the City with all of the clarity it has requested, and is now met with accusations that his 

response to the City is a move to “sabotage” the City’s ability to respond. 

2 For each of its three revisions to the City’s proposed undisputed facts, Plaintiff has included (1) the track change 

version and (2) a clean version of the revisions for the Court’s review. Both versions are included in the exhibit 

referencing that revision. See Exhibits D (First Revised JSOF), B (Second Revised JSOF), and F (Third Revised 

JSOF).

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 12 of 31 PageID #:9638
9

An examination of Plaintiff’s contributions to the City’s joint statement of facts 

demonstrates that the City’s complaints are without basis, and that the City merely hopes to 

delay resolution of summary judgment. Specifically, in an effort to respond comprehensively to 

the 164 paragraphs contained in the City’s initial proposed statement of undisputed facts, 

Plaintiff took four steps:

First, Plaintiff provided additional context where the City quoted a document for 

the purpose of setting out an agreed fact, but the proposed agreed fact was materially 

incomplete. For instance, the City quoted only the first sentence of a lengthy two-page portion 

of Plaintiff’s interrogatory response regarding Plaintiff’s “eyewitness identification Monell 

theory,” see Ex. B (Second Revised JSOF), at p. 24, ¶ 10, and one sentence out of over four 

pages included in Plaintiff’s interrogatory responses to explain Plaintiff’s “street files” Monell 

theory—of an overall twelve-page response to the City’s Interrogatory No. 2. See Ex. B at p.24-

25, ¶ 11; see also Exhibit G (Plaintiff’s Resp. to Def. City of Chicago’s First Set of Inter.). 

Defendants then stated that Plaintiff did not supplement his Responses to these interrogatories. 

Ex. B at p. 30, ¶ 17. The City’s purpose was to narrow the scope of Plaintiff’s Monell theories in 

the case by referencing documents selectively that the City claimed gave it notice of the Monell

claims at issue in the case, as the City routinely does at summary judgment. But the City was 

incorrect about the scope of the Monell theories, and Plaintiff’s interrogatory response explained 

the actual breadth of those theories in detail. Accordingly, Plaintiff added the missing content to 

the City’s proposed excerpt of the evidentiary source and proposed it as an agreed fact. Ex. B at 

p. 7-16, ¶ 2. When Defendants complained about the length, Plaintiff proposed as a compromise 

that he would agree to remove citation to full interrogatory responses if the City agreed to 

remove its selective citation of them. The City refused. 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 13 of 31 PageID #:9639
10

Defendants cannot rely on an evidentiary source to try to narrow the claims in the case on 

which they are trying to obtain summary judgment before trial, and then complain when Plaintiff 

adds the missing context from the same evidentiary source, showing that the claims are not so 

narrow. Defendants argued that they can use this admission of a party opponent at summary 

judgment but Plaintiff cannot, Fed. R. Evid. 801(d)(2), but that does not mean that they can 

selectively quote it to create a jointly agreed fact that is in fact contradicted by the document they 

are quoting and not agreed. 

Another form of this deficiency whereby the City excludes relevant evidence and then 

objects to its addition by Plaintiff can be found in Defendants’ selective citation of deposition 

testimony regarding the definition of “street files,” a key concept for Plaintiff’s Monell claims. 

Defendants only cited to the 2014 testimony of its Rule 30(b)(6) representative James Hickey, 

who stated that “street files,” or “working files,” or “running files” were manila folders 

containing “photocopies of reports, criminal history statements, photographs, mugshots and 

memorandums requesting assistance on investigations.” Ex. B, Second Revised JSOF, at p. 32, ¶ 

21 (original text in black). However, this description is incomplete and disputed, as the City 

knows well from prior trials on this very issue. So, Plaintiff provided additional facts, supported 

by evidence, providing the fuller context of what comprises street files. See Ex. B, Second 

Revised JSOF, at ¶ 21 (in track changes). The City has not responded to Plaintiff’s objection. 

Other non-exhaustive examples where Plaintiff provides context for materially 

incomplete proposed facts includes the following, found in the track changes of Exhibit B, 

Second Revised JSOF: p. 1-6, ¶ 1 (the City cites excerpts of Plaintiff’s complaint to encapsulate 

Plaintiff’s Monell claims, so Plaintiff reproduces the accurate and complete allegations in 

Plaintiff’s complaint); p.49, ¶ 59 (The City cites excerpts of unrelated deposition testimony to 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 14 of 31 PageID #:9640
11

limit Tiderington’s criticisms of CPD’s policies and practices concerning the documentation and 

disclosure of information learned during homicide investigations into “two global criticisms,” so 

Plaintiff includes the accurate scope of his criticisms as stated in Tiderington’s expert report); p. 

70-71, ¶ 117 (The City claims that “there is no column in the [relevant] spreadsheet that says 

failure to document,” ignoring all of the columns in the spreadsheet related to a failure to 

document steps, which Plaintiff provides in full).

Second, Plaintiff corrected incorrect quotations and incorrect summaries of 

evidence provided by the City that were not an accurate reflection of the evidence that the 

City cited. This occurred in significant part in the sections containing Defendants’ inaccurate 

summaries of the testimony of Plaintiff’s expert witnesses. For instance, Defendants offered as 

an agreed fact that:

The evidence upon which Tiderington relies in support of his opinion that police 

officers were treating notes as their personal property is the fact that “there were 

no notes on investigations that you would reasonably expect to see notes and that 

many files were void of notes as well.” (Ex. 6, Tiderington Dep from 

Solache/Reyes dated 10/6/22, 494:10-24). 

Ex. B, Second Revised JSOF, at p. 75-76, ¶ 128 (original text in black).

 There are many problematic issues with this citation, including that this testimony from 

Tiderington’s deposition in Solache/Reyes (a different case) is not a complete summary of his 

opinions in this case, which are encompassed in Tiderington’s expert report. Plaintiff therefore 

provided a fuller context to Tiderington’s opinion to arrive at a proposed agreed fact, adding 

Tiderington’s reliance on and review of (a) historical evidence of police officers’ treatment of 

notes as personal property, (b) observations in this litigation that multiple, separate investigative 

files were maintained, (c) review of prior testimony from CPD designee Hickey regarding 

detectives’ confusion about how personal notes had to be retained, and (d) evidence that 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 15 of 31 PageID #:9641
12

handwritten notes are still routinely used but were not included in GPRs. (See Ex. B, Second 

Revised JSOF at p. 75-76, ¶ 128 (in track changes, and omitting citations)). The City has not 

responded to Plaintiff’s objection.

Other examples where the City misquoted or selectively misstates documents and 

testimony include but are not limited to the following, as seen in the track changes of Exhibit B, 

Second Revised JSOF: p. 37, ¶ 31 (Defendant misquotes General Order 88-18, and Plaintiff’s 

edits correct the deficiency, as noted in its objection); p. 38, ¶ 32 (the City provided an 

incomplete quotation of General Order 88-18, and Plaintiff's edits correct the deficiency, as 

noted in its objection); p. 78-79, ¶ 133 (the City’s proposed agreed fact states that Tiderington’s 

report “assumes the redacted document are not police documents,” when in reality Tiderington 

testified that he did not recall specifically being told that redactions were made only of redacted 

privileged information and not police reports, but believes he was told to operate under that 

assumption); p. 82-83, ¶ 145 (The City selectively provides only one statement from 

Tiderington’s testimony speaking to what “withheld” means, when two were available in that 

deposition, and Plaintiff provides the second statement); p. 83-92, ¶¶146, 156-157, 160, 163, 166 

(the City selectively quotes from Tiderington’s review of the Kim Mathis, Ardell Clemons, 

Oscar Soto, Leon Fields, and Guy Rainey cases, and Plaintiff provides the rest of the review for 

accuracy); p. 104, ¶ 199 (the City provided an incomplete quotation of Dr. Steblay’s report, and 

Plaintiff provided the first half of the quote); p. 118, ¶ 218 (the City misstates Dr. Steblay’s 

statistical analysis, and Plaintiff reproduces the portion of the analysis in full); p. 120, ¶ 222 (The 

City claims that “Steblay does not know if the 11 field studies exclusively relied on homicide 

cases,” which is an inaccurate summary of her testimony, so Plaintiff quoted that testimony 

directly). 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 16 of 31 PageID #:9642
13

 Third, Plaintiff added proposed agreed material facts on which Plaintiff will contend 

that he is entitled to summary judgment on particular Monell theories against the City.

Plaintiff also added undisputed facts about the fact that the City has tried and lost multiple 

federal trials on the same Monell claims at issue in this case. Plaintiff will rely on these additions 

in support of his forthcoming motion that the City is precluded from re-litigating its Monell 

liability, and, separately, that the City cannot create a triable dispute of fact that its policies 

governing police file keeping were facially deficient at the relevant time.

These paragraphs added by Plaintiff are beyond dispute. They concern the theories 

litigated, instructions given, judgments entered, post-trial motions denied, etc., in litigation in 

which the City was found liable, including Rivera v. Guevara, No. 12 C 4428 (N.D. Ill.), Fields 

v. City of Chicago, No. 10 C 1168 (N.D. Ill.), Palmer v. City of Chicago, 562 F. Supp. 1067 

(N.D. Ill.), and Jones v. City of Chicago, No. 87 C 2536 (N.D. Ill.). In support, Plaintiff provided 

the specific exhibits that supported each paragraph that he added. These past Court documents 

and judgments are certainly admissible—indeed, the Court can take judicial notice of them all. 

However, other than its blanket objection to their inclusion, the City has not substantively 

responded to these specific additions.

Fourth, Plaintiff stated objections to the City’s proposed paragraphs where the facts 

contained in those paragraphs are disputed or the evidence relied upon is not admissible. 

As an example, the City often provided a characterization of a passage from an expert’s 

deposition as undisputed, where that characterization is plainly disputed in the same expert’s 

principal report in the case. 

For example, the City provided a drastically incomplete statement of Dr. Steblay’s nineparagraph description of her coding process as an agreed fact. See Ex. B at p. 105-107, ¶ 203 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 17 of 31 PageID #:9643
14

(struck-through text from City stating that “Dr. Steblay’s report states that the data pertained to 

information regarding witness identifications that were coded from investigation files and RD 

files corresponding to homicide investigations from 1989-1998.”) (citations omitted). Plaintiff’s 

modification remedies that deficiency by providing the full text of her report, which provides the 

data on which she relied (“an Excel spreadsheet detailing 2786 Chicago lineups reported in Area 

Five homicide files” from 1989-1998”), as well as a description of the information that was 

coded; that she was provided access to all of the homicide case files associated with the lineups, 

and discussed with Plaintiff’s counsel the effective coding method for her analyses; that “[t]he 

process followed was a scientifically-sound coding system and more than sufficient to yield a 

scientifically-sound dataset.”; and an extensive description of the basis for reliable coding. See 

Ex. B at p. 105-107, ¶ 203 (added text). Plaintiff’s proposed additions state the description of her 

coding process in full, without such severe reduction of her process. There is no possibility that 

the City’s single line could stand as an “agreed” fact when so much has been omitted.

As another example, the City states that Plaintiff’s expert Dr. Steblay “did not evaluate 

whether any of the eyewitness identifications from the Dataset were fabricated because ‘[t]here’s 

no way to know that from my data set – the data set.’” See Ex. F, Third Revised JSOF, at p. 1, ¶

252. Yet this selective portion of Steblay’s deposition is disputed in Steblay’s principal report, 

which explains in detail how the overrepresentation of suspect identifications in the Chicago data 

could be explained by the fabrication of evidence by police officers. See id. at ¶ 252 (Objection). 

Moreover, the City’s description of Dr. Steblay’s deposition testimony is incomplete, and clearly 

disputed by the very next question after the one cited by the City. In that response, she describes 

her analysis of eyewitness identifications, including the important distinction between “suspect 

identifications, filler identifications, [and] no identifications at all,” which assisted in her 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 18 of 31 PageID #:9644
15

evaluation of false identifications. Id. Plaintiff would agree to the full excerpt of Steblay’s 

deposition being used as agreed facts, but not the misleading initial portion cited by Defendants.

Finally, the City included as proposed agreed facts contentions that were based solely on 

the report of its own eyewitness identification expert, Dr. John Wixted, who rebuts the report of 

Dr. Steblay, Plaintiff’s expert on the same subject. See Ex. B, Second Revised JSOF, at p. 133, ¶

262. As Plaintiff pointed out in objections, the contents of Dr. Wixted report on which the City 

would like to rely are plainly contradicted by Dr. Steblay’s report and her rebuttal report. All of 

these facts in the paragraphs discussing Defendants’ rebuttal expert are disputed, as one would 

expect from a rebuttal expert in civil litigation. The City has not responded to that objection.

2. Plaintiff’s Efforts Comply with the Court’s Orders and the Rules

Plaintiff’s effort described in the last section was plainly a good faith and thorough 

attempt to comply with this Court’s standing order in response to a proposed statement of agreed 

facts that the City knew was not agreed in nearly every respect. Plaintiff completed the task of 

explaining his position on an extremely tight timeline to ensure that this Court’s deadlines were 

met. Even a cursory review of Plaintiff’s edits demonstrates that there is no basis for the City to 

obtain a ruling that its highly disputed facts are admitted for purposes of summary judgment. The 

City certainly cannot obtain such relief having refused to respond substantively to Plaintiff’s 

contributions to the joint statement.

None of the City’s arguments otherwise have merit. The City complains that Plaintiff sent 

multiple versions of the same documents, but each new version was created by Plaintiff 

specifically to address some grievance raised by the City. The City cannot now turn around and 

argue that they were unprepared to receive these, particularly when they have even stated aloud 

to Plaintiff on the conferral call that they had not taken any time to review them. Indeed, the City 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 19 of 31 PageID #:9645
16

even recognizes in its Motion that the “substance and length” of Plaintiff’s added paragraphs 

“has not changed.” See Dkt. 292-1 at 10, n.2. It defies reason that the City actually has a problem 

reviewing the same substance when the paragraphs are re-numbered.

The City also complains about the length of some of Plaintiff’s proposed agreed 

paragraphs. Plaintiff is aware that the final version of the Parties’ agreed statement of undisputed 

facts must have “short, numbered paragraphs,” see Local Rule 56.1(a). However, the City has yet 

to offer any means of reducing Plaintiff’s additions, and has provided no substantive response to 

these additions by Plaintiff, other than to reject Plaintiff’s proposal of removing interrogatory 

references altogether. Plaintiff would of course endeavor to make the final version of the 

Parties’ agreed statement of undisputed facts in compliance with the Local Rule, but could not do 

so without any cooperation from the City in identifying what is undisputed and what is not. 

Plaintiff has provided the City with the evidentiary context for what agreements are possible in 

particular paragraphs, where the City’s proposal was not, but without a response to those 

proposals, it is impossible for Plaintiff to cut the lengths of the paragraphs to a shorter length.

The City next complains that there are certain paragraphs without citations. See Dkt. 292-

1 at 12. These paragraphs are: (1) Plaintiff’s statement that the issue of the suppression of 

exculpatory evidence was fully litigated Rivera and Fields (see City’s reference to the City’s 

Exhibits D/E, ¶¶4(d), and 5(e)); (2) Plaintiff’s explanation of claims in Rivera and Kluppelberg

(City’s reference to its Exhibits D/E, ¶¶ 5(b) and 6(a)); summary statements of this previous 

litigation (¶ 9, citing cases fully referenced in the paragraphs directly above, and for ¶ 10, 

directly below); and one paragraph with two citations to Dr. Steblay’s Expert Report (¶ 197). 

When Plaintiff receives substantive responses to its objections and additions, he is glad to restate 

those incorporated citations at the identified paragraphs.

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 20 of 31 PageID #:9646
17

Next, the City contends that Plaintiff has relied on inadmissible evidence. But Plaintiff 

has relied on precisely the same categories of evidence that the City relied on in its draft: 

Plaintiff’s complaint, Plaintiff’s interrogatory responses, the City’s written policies, Rule 

30(b)(6) testimony, expert reports, and expert depositions. The City relied on each of these 

categories of evidence as well, and for it to move to have facts admitted because Plaintiff 

followed suit makes no sense.

Addressing those categories, Plaintiff added language from the complaint (which indeed 

are allegations) and his complete interrogatory response because the City cited those same 

sources to suggest that Plaintiff’s Monell theories in this case are limited and to imply that 

Plaintiff did not give the City notice of certain theories during discovery. If the City intends to 

make the argument that the Monell theories are limited, then the Court should have before it the 

information exchanged in discovery about those theories as an agreed fact, and not the City’s 

truncated version. Moreover, as stated, in the interest of avoiding further debate, Plaintiff 

proposed removing all paragraphs and references that rely on his complaint and interrogatory 

responses if Defendants agreed to do the same, which was met with blanket refusal.

 With respect to the City’s complaint about Plaintiff’s reference to “jury instructions from 

other unrelated cases, jury verdict summaries and judgments from other civil cases, [and] court 

opinions from unrelated cases,” the City notably provides zero support for the proposition that 

these items of evidence are inadmissible. Plaintiff refers to indisputable documents from cases in 

which the City’s liability for the Monell theories at issues here has been adjudicated and where 

the City has lost. Plaintiff includes these evidentiary materials to support his argument that the 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 21 of 31 PageID #:9647
18

City should be precluded from re-litigating the Monell theories at issue here. Without a basis for 

objecting to the inclusion of these materials, these materials are admissible.3

The City also takes issue with Plaintiff’s citations to expert reports. This objection is 

troubling for two reasons. First, the City’s first draft of the proposed joint statement of facts is 

littered with citations to expert reports. Why should it be that the City can cite this type of 

evidence but not Plaintiff? Further, the City ignores that routinely expert reports are cited as part 

of the summary judgment record when supported by a declaration from the expert that their 

testimony at trial will reflect their report, as Rule 26(a)(2) contemplates. Treadwell v. McHenry 

Cnty., Illinois, 193 F. Supp. 3d 900, 903 (N.D. Ill. 2016) (“[T]he majority rule is that a “belated 

affidavit is sufficient to support the use of the report at the summary judgment stage.” (quoting 

Harpold v. Ethicon Endo–Surgery, Inc., No. 1:06–cv–1666–DFH–DML, 2009 WL 688984, at *1 

(S.D.Ind. Mar. 11, 2009) (Hamilton, J.)); but see Scott v. Edinburg, 346 F.3d 752, 759 (7th 

Cir.2003) (“[The expert] report was introduced into the record without any supporting affidavit

verifying its authenticity and is therefore inadmissible and cannot be considered for purposes of 

summary judgment.”) (emphasis added). The City’s contention that it can rely on expert reports 

but Plaintiff cannot is unsupported by the law and lacks common sense.

On this point, the City also complains that Plaintiff has disputed paragraphs where the 

City relied upon excerpts of Plaintiff’s experts’ depositions (often misquoting or unfairly 

3 The City also accuses Plaintiff of citing “to his own counsel’s responses to post-trial motions 

from . . . unrelated cases to attempt to establish undisputed facts on the City’s policies in this 

case.” Dkt. 292-1, Mot. at 10. But Plaintiff does not cite briefs. Instead, in the paragraphs 

referenced, Plaintiff references transcripts of proceedings during which Brasfield, whose expert 

report was reviewed and relied on by Plaintiff’s expert Tiderington, testified. See Ex. H, 

Plaintiff’s Resp. to Def.’s Post-Trial Mot. in Rivera Ex. 9 (June 15, 2018 Tr. of Proceedings), at 

2178-2179; Ex. I, Plaintiff’s Resp. to Def.’s Post-Trial Mot. in Rivera Ex. 10 (June 18, 2018 Tr. 

of Proceedings), at 2438). Plaintiff has yet to receive an in-line response to its use of these 

exhibits from the City. 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 22 of 31 PageID #:9648
19

summarizing the testimony) that are at odds with their reports. Plaintiff has provided a lengthy 

example above of how it has objected to the City’s adversarial, selective use of citations to 

expert reports and depositions. The City cannot cross examine an expert during a deposition for 

hours, pull a half-dozen excerpts from that deposition, and present those excerpts to this Court as 

the expert’s undisputed opinions, when in fact many of them are clearly contradicted by the 

content of the same expert’s reports. A snippet of an expert deposition contradicted by other 

evidence does not create an undisputed fact for summary judgment; it identifies an area for cross 

examination at trial. Nonetheless, Plaintiff proposed an agreement on this issue as well: he 

agreed to remove all paragraphs and references that rely only on expert reports and depositions if 

Defendants agree to do the same. Again, Defendants refused even to consider the proposal.

Along the same lines, the City contends that Plaintiff’s objections indicating that one of 

the City’s proposed paragraphs contradicts an expert report is also an improper objection. 

Plaintiff does not see how its objection could be clearer on this point: if the City’s proposed 

paragraph contradicts an expert’s report and testimony, then that paragraph contains disputed 

information. That is precisely the type of objection contemplated by this process. Disputed 

information cannot be considered in a joint statement of undisputed facts.4 Expert testimony can 

be tested and challenged at trial, allowing those disputes to be clarified before a jury.

Finally, the City accuses Plaintiff of providing minimal information to support its 

objections. See Dkt. 292-1, at 12. Yet for its representative examples that the City cites as 

lacking support, Plaintiff already provided the City with modified objections, in response to the 

City’s complaints: 

4 Likewise, Defendants argue that Plaintiff improperly objects to the City’s attempt to use its own 

rebuttal expert to establish “undisputed” facts. See Dkt. 292-1, at 13. Yet, as Plaintiff’s objections make 

clear, a rebuttal expert creates a disputed fact. The proposed agreed facts in the paragraphs discussing 

Defendants’ rebuttal expert are disputed, as one would expect from a rebuttal expert in civil litigation.

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 23 of 31 PageID #:9649
20

See Exhibit B, Second Revised JSOF, at p. 118, ¶ 217. Plaintiff also provided more fulsome 

objections to the other paragraphs identified in the City’s Motion. Compare Dkt. 292, at 13 with 

Ex. B at p. 120-121, ¶¶ 222-223 (corresponding to Exhibit D, First Revised JSOF, ¶¶ 218-219),5

and Ex. F, Third Revised JSOF, at p. 1-4, ¶¶ 252-261 (corresponding to Ex. D, First Revised 

JSOF at p.113-115, ¶¶ 248-257)). Plaintiff’s objections are fulsome, cite to evidence, and 

explain Plaintiff’s reasoning. Plaintiff still has not received any substantive response to those 

objections, despite multiple rounds of attempting to placate the City. If the City has not reviewed 

the Plaintiff’s endeavors to work with the City to give them the information they need, and if it 

refuses to respond substantively, then the City should not be bringing this dispute to the Court. 

The City has provided no legally sound argument for the adoption of its own facts as 

admitted. It has provided no justification for its refusal to engage in the summary judgment 

process. It has provided no substantive response or reason that Plaintiff’s contribution to the joint 

statement of facts is insufficient, and Plaintiff’s submissions reflect otherwise. This Court should 

deny the City’s motion. 

5 Plaintiff’s counsel indicated in correspondence with the City’s counsel that he was considering 

supplementing his objection to paragraph 224 and 228 in the Second Revised Proposed JSOF, which 

correspond to paragraphs 220 and 224 in the first revision of the JSOF. See Exhibit C (January 22, 2024 

Correspondence from M. Gould to the City).

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 24 of 31 PageID #:9650
21

3. Plaintiff’s Contributions to the Individual Defendants’ Proposed Undisputed 

Facts

Plaintiff has made the same good-faith and expeditious effort to respond to the individual 

Defendants’ proposed joint statement of facts. When Plaintiff provided his response to the 

individual Defendants on January 17, 2024, Dkt. 290-1, Plaintiff flagged that not only was the 

proposed joint statement full of disputed facts, in many cases Defendants had attempted to 

improperly circumvent an obvious dispute of fact by citing to only one side of the dispute.

As with the City, Plaintiff offered corrections, additions, objections, and citations to 

evidence. As with the City, there is no question that Plaintiff’s efforts complied with the Court’s 

Standing Orders and Rules, and Defendants do not suggest otherwise.

On Friday, January 19, the individual Defendants provided a response to Plaintiff’s 

comments, and they announced for the first time that a motion regarding disagreements would 

have to be filed on Monday. Dkt. 290-3 at 4. After providing their drafts nearly on Christmas 

Eve, and after Plaintiff had responded in extreme detail in just two weeks of work, Defendants 

announced that Plaintiff would have to reach agreement or not on the remainder of issues within 

approximately one business day. 

Still Plaintiff attempted to collaborate, offering a time when his counsel was available on 

Monday to meet-and-confer on outstanding issues and providing a new draft of the joint 

statement in less than one business day, on the morning of Monday, January 22, which included 

a number of agreements and compromises. Dkt. 290-4. Plaintiff flagged again that Defendants’ 

latest round of edits failed to solve the problem raised previously: in numerous places, 

Defendants left comments that did not address the objection or dispute that Plaintiff raised and 

simply made conclusory claims like “the fact is supported.” Ex. J at 3 (A. Swaminathan Jan. 22 

Email). Defendants chose to simply cite to evidence on one side of a dispute, and then debate 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 25 of 31 PageID #:9651
22

whether the citation is “supported,” ignoring the evidence Plaintiff cited that creates a dispute of 

fact on the same material fact. Id.

During the meet-and-confer at 4:30 p.m. on January 22, the parties agreed that Plaintiff 

would look through all of Defendants’ latest round of edits to ensure that his objections were 

incorporated and to see where the remaining disputes lay. Upon review, Plaintiff noticed that 

Defendants had not incorporated some of his objections and citations. As such, Plaintiff had to 

work through the document one paragraph at a time, and he informed Defendants that there was 

not enough time to complete the effort on the night of January 22. Ex. J at 1-2 (A. Swaminathan 

Jan. 22 Email). The individual Defendants then filed their motion. 

Plaintiff has done all he can to abide by this Court’s Standing Order and confer with 

Defendants in good faith to craft a joint statement of undisputed material facts on the truncated 

timeline that Defendants created by waiting until right before Christmas Eve to start the process. 

The resulting inability to meet the Court’s final summary-judgment deadline is a problem of 

Defendants’ own creation, and Defendants should bear the consequences of that problem. 

Defendants ask for an additional week of time, but Plaintiff has no faith that this will be the last 

request to extend the summary judgment deadline, or that the inherent problems with 

Defendants’ proposed statement of fact (discussed below) can be addressed by the parties, and 

then the Court, on this timeframe. Meanwhile, the Court has already ruled there would be no 

further extensions. This Court’s Standing Order makes it Defendants’ responsibility to timely 

organize their motions for summary judgment, they have not done so, and their motion for more 

time should be denied.

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 26 of 31 PageID #:9652
23

C. The Parties’ Conferrals on the Joint Statement of Fact Demonstrate That 

Defendants Have No Basis to Move for Summary Judgment

Last but not least, it is worth emphasizing again that Defendants’ consistent delays and 

non-participation in the summary judgment process have occurred in the context of a case where 

there is no good-faith basis for Defendants to move for summary judgment in the first place. The 

back and forth regarding Defendants’ joint statements of fact make that clear as day. 

In this case, Plaintiff contends that his wrongful conviction was caused by the 

investigative misconduct of the individual Defendants and the policies and practices of the City 

of Chicago. The principal individual Defendant, Guevara, is asserting his Fifth Amendment 

rights in response to all questions. A motion for summary judgment filed by the Plaintiff on the 

evidence suppressed in the case has already resulted in a ruling from this Court that there are 

genuine issues of material fact that a jury must resolve. The remaining individual Defendants 

have no basis to argue that their role in the misconduct, the investigation of Plaintiff, and his 

wrongful conviction was so limited that there is no genuine dispute of fact about whether they 

are liable for violating Plaintiff’s constitutional rights or Illinois law. The City of Chicago, as 

discussed, has already lost at trial and on appeal the very same Monell theories at issue here, and 

so it is either precluded from re-litigating those issues or those past results belie any contention 

by the City that there are no genuine disputes of fact for trial. With all of this background, how 

could it be possible that Defendants are justified in wasting months or years of the parties’ time 

and the Court’s resources advancing an argument that there is nothing for a jury to resolve here. 

This reality is reflected in the Defendants’ approach to joint statements of fact. 

Defendants’ proposed joint statements of fact are patently improper. They are full of 

mischaracterizations of evidence and selective citation to the record. Most fundamentally, they 

are full of disputed facts, including disputed facts that go to the most hotly contested issues in the 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 27 of 31 PageID #:9653
24

case. As discussed, while Defendants attempt to sidestep this problem by citing to only the 

evidence on one side of the dispute, that is not an appropriate approach to a joint statement of 

undisputed facts, and it simply highlights why this is not a summary judgment case. 

To provide a few examples, the individual Defendants’ proposed statement of fact 

includes the following:

At his civil deposition in this case, Aby Gonzalez denied he identified someone as the 

offender on the night of the shooting and denied that he saw the shooting. (Supporting 

Evidence: Ex. 8 - Gonzalez Deposition 60:18-61:1, 75:4-8.) 

Dkt. 290-1 at ¶25. This is one of the central issues in the case: whether eyewitness Aby Gonzalez 

saw the shooting and identified an alternate suspect named Bryan Johns from a lineup on the 

night of the shooting. Contrary to Defendants’ proposed statement of fact, there is a mountain of 

evidence that he did. This includes the original police report from the scene, describing what 

Aby Gonzalez saw: the shooter “pulled a gun and pointed it at him and stood there for several 

seconds,” and then “fire two shots at Fred [the victim] . . . and ran past Gonzalez again. . . .” Ex. 

K – RFC Johnson 52. And it includes the lineup report from the night of the shooting written by 

Detective Erickson—discussed at length in the briefing on Plaintiff’s motion for summary 

judgment against Guevara—which explicitly says Aby Gonzalez “identified the #2 Bryan Johns 

as the offender.” Ex. L – RFC Johnson 27. This is enough to create a dispute, but there is much 

more. See, e.g., Ex. M - Johnson 911-912 (Tepfer Report, detailing that Gonzalez told him that 

he positively identified someone in a lineup on the night of the shooting); Ex. N - Tepfer Dep. 

Vol. II at 88:17-90:20. 

Defendants try to avoid this obvious dispute and present the material fact about whether 

Gonzalez saw the shooting and identified Johns as undisputed by simply rewriting the statement 

of fact to focus only on the civil deposition testimony of Aby Gonzalez (“At his civil deposition 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 28 of 31 PageID #:9654
25

in this case, Aby Gonzalez testified...”). In this way, Defendants ignore all of the evidence 

above, which clearly demonstrates that there is a dispute of fact on this issue. This is improper. If 

disputes could be circumvented in this way, then parties could assert that any issue in the case is 

undisputed by simply citing to the evidence that favors them, defeating the entire purpose of this 

Court’s procedures.

Consider another example from Defendants’ proposed statement of fact: 

Ricardo Burgos testified that on June 12, 1991 at approximately 7:45, he was 

driving with a friend East down North Ave. At that time he saw a black guy 

wearing a T-shirt and gray pants walking North down Claremont with a gun in his 

hand. (Supporting Evidence: Ex. 5 - Criminal Trial Transcript (Ricardo Burgos) at 

JGS_JOHNSON 79 (A68:16-21), JGS_JOHNSON 80-81 (A69:22-70:7).) (Dkt. 

290-1 at ¶102)

Mr. Burgos testified that he looked at this man who fired the gun for about fortyfive seconds and could see his face. Mr. Burgos then identified Demetrius 

Johnson as the person he saw fire the gun that day. (Supporting Evidence: Ex. 5 -

Criminal Trial Transcript (Ricardo Burgos) at JGS_JOHNSON 81 (A70:12-15), 

JGS_JOHNSON 85 (A74:3-14) (Dkt. 290-1 at ¶105 )

Dkt. 290-1 at ¶¶102, 105. Whether eyewitness Ricardo Burgos ever actually saw the shooter and 

could make an identification of Plaintiff without the Defendant officers telling him who to pick 

is another hotly disputed issue. Mr. Burgos’ criminal trial testimony is merely one piece of 

evidence bearing on this issue. Others include the police report documenting his initial 

conversation with police, his sworn declaration, and his deposition testimony. All of these 

contradict Mr. Burgos’ trial testimony and create a dispute of fact. See, e.g., Ex. O –Police 

Report of Ricardo Interview at RFC-Johnson 25 (Ricardo describes the shooter as a “male 

Hispanic,” not a “black guy”); Ex. P - Declaration of Mr. Burgos at Johnson 000601- 000603 (he 

was driving by in a moving car, did not see shooting, only saw shooter running away, did not see 

shooter’s face); Ex. Q – Deposition of Mr. Burgos at 17:10-19:4, 38:5-14 (if the police said he 

could have identified the shooter, that would have been false), 45. Defendants ignore all of this 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 29 of 31 PageID #:9655
26

evidence, instead re-writing the statement of fact to focus only on the piece of evidence they like, 

the criminal trial testimony. 

As discussed above, during the conferral process Plaintiff raised this problem, which 

permeates Defendants’ proposed statements of fact. Defendants provided no response, simply 

ignoring it and pressing ahead with their proposed statement. As these examples show, it is the 

approach that Defendants have taken to the joint statements of fact that violates this Court’s 

Standing Orders and the Local Rules. Indeed, Defendants’ approach conflicts with Rule 56 itself, 

which requires the moving party to meet the initial burden of establishing that there is no genuine 

dispute of material fact for a jury to decide on the claims or defenses. Carmichael v. Village of 

Palatine, 605 F.3d 451, 460 (7th Cir. 2010).

At the end of the day, Defendants have taken this approach to summary judgment 

because it is the only approach available to Defendants. There are innumerable disputes of fact 

on every material issue in this case. The case should go to trial instead of languishing further at 

summary judgment.

CONCLUSION

For all of these reasons, Defendants’ motion for additional time should be denied, and the 

City’s motion to deem facts admitted should be denied. In a case like this one, as this process 

demonstrates amply, summary judgment is a waste of the Court’s and the parties’ time and 

resources, and the case should proceed directly to trial. 

To the extent that Defendants truly believe that they have a good faith basis to move for 

summary judgment on a truly agreed set of facts, they should be ordered to do so by the final 

deadline of January 31, 2024. Indeed, there are a set of facts from each joint statement on which 

the parties have reached agreement, and as Plaintiff has expressed to Defendants repeatedly, 

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 30 of 31 PageID #:9656
27

Plaintiff remains willing to continue discussing the proposed joint statements of fact to see if any 

additional agreements can be reached. But having failed to provide a proposed joint statement of 

fact with sufficient time for the parties to meaningfully confer and for the Court to adjudicate 

disputes, it is only those agreed facts on which Defendants should be permitted to move by the 

January 31, 2024 deadline.

January 23, 2024 RESPECTFULLY SUBMITTED,

DEMETRIUS JOHNSON

BY: /s/Alyssa Martinez

Anand Swaminathan

Steve Art

Sean Starr

Alyssa Martinez

LOEVY & LOEVY

311 N. Aberdeen Street

Chicago, Illinois 60607

(312) 243-5900

Case: 1:20-cv-04156 Document #: 294-1 Filed: 01/23/24 Page 31 of 31 PageID #:9657