August 2011

You are currently browsing the monthly archive for August 2011.

Judge Zagel: Civilian Complaint Records Should Not Be Private

August 25, 2011 in City of Chicago, FOIA, Independent Police Review Authority, Internal Investigations, Office of Professional Standards, Public Access to Records by Adele Nicholas | No comments

As I’ve recently discussed, there has been a great deal of litigation about whether internal investigation files reflecting complaints of police misconduct should be accessible to the public.

Yesterday, Judge James Zagel issued a very helpful decision in the case Henry et al. v. Centeno, 10 C 6364. The City of Chicago challenged Magistrate Judge Maria Valdez’s decision that complaint registers (police department records reflecting civilian complaints of police misconduct, usually called “CRs”) should not be subject to a protective order prohibiting the parties from distributing and discussing the records. Judge Zagel upheld Judge Valdez’s decision, writing:

Privacy interests will often be sufficient to establish good cause for a protective order. Where the information at issue relates solely to the public duties of a public employee, however, the claim to that privacy interest is far more tenuous.

Judge Zagel rejected the City’s argument that records of “unsustained” or “unfounded” complaints (those that the department terminated in the officer’s favor) should be kept private because they were nothing more than allegations of misconduct. Judge Zagel approvingly cited the Illinois Appellate Court decision in Gekas v. Williamson, 912 N.E.2d 347 (Ill. App. Ct. 2009), in which the court explained:

…[C]itizens might want to see whether the Division is performing a fair and objective investigation of complaints. They might want to see whether complaints that the Division determined to be unfounded are really unfounded. Obviously, citizens cannot perform this critique … if so-called “unfounded” complaints are exempt from disclosure for the tautological reason that the public body decided they were unfounded.

Pointless “Affirmative Defenses” and the Judge Shadur Benchslap

August 25, 2011 in Cook County, Cook County Jail, Excessive Force by Adele Nicholas | No comments

Judge Milton I. Shadur of the Northern District of Illinois is known for his literate, often witty, and always well written opinions. He’s also known for his intolerance for boilerplate language in answers to complaints. His well known pet peeve is defendants who make wholesale denials of facts of which they lack personal knowledge, and affirmative defenses that are clearly inapplicable to the case. God help the lawyer who doesn’t heed Judge Shadur’s warnings! He’s likely to (a) fine the lawyer; (b) order the lawyer not to charge his client for his time drafting a new answer; (c) order the lawyer to send his scathing opinion directly to the client.

Judge Shadur sent down another benchslap (credit: Above the Law) this week, this time in the Section 1983 case Roberto Flores-Bahena v. Hovel, et al., 11 C 2671. The victim was Assistant State’s Attorney Michael Sorich, who angered Judge Shadur by asserting affirmative defenses of (1) immunity from punitive damages for official capacity claims (the complaint was clear that the defendant was named in his individual capacity) and (2) “objective reasonableness” (the complaint alleged that the defendant corrections-officer beat plaintiff while he was handcuffed, leaving him with broken ribs, a broken eye socket and a broken nose).

An earlier order told Sorich that the defenses lacked merit, but Sorich apparently reasserted them in his amended answer. Judge Shadur struck the answer in its entirety and ordered Sorich to beg for mercy:

Accordingly attorney Sorich is ordered, in accordance with Rule 12(c)(1), to respond on or before September 6, 2011 as to why an appropriate fine should not be imposed on him personally.

Ouch.

$333k Verdict Against Chicago Police Officers who Shot Family Pet

August 21, 2011 in Excessive Force, False Arrest, Intentional Infliction of Emotional Distress, Verdict by Adele Nicholas | 2 comments

A Chicago jury awarded $333,000 to a family whose black lab “Lady” was shot and killed by Chicago police officers during a search at their South side home in 2009. The search turned up no evidence of criminal activity, and the dog was friendly and non-threatening, according to the Plaintiffs. Teenage brothers Thomas and Darren Russell were home during the search. Thomas testified that he answered the door when police knocked and asked to lock up the dog before they came in. The officers refused, and when the friendly pooch rounded the corner wagging its tail, Officer Richard Antonsen fired his duty weapon, killing the dog. To make matters worse, the officers arrested Thomas and charged him with obstruction. He was found not guilty.

The jury awarded $175,000 to Thomas, $85,000 to Darren and $35,000 each to the boys’ parents, who were not home during the execution of the warrant. The jury also hit Antonsen with $2,000 in punitive damages and a supervisor on the scene with $1,000 in punitives.

The case is Russell v. City of Chicago, et al., 10 C 525, and was tried before Judge Marovich. Smith, Johnson & Anholt represented the plaintiffs. Corporation counsel represented the city.

Summary Judgment Denied on Intentional Infliction Claim against Chicago Police

August 18, 2011 in City of Chicago, Intentional Infliction of Emotional Distress by Adele Nicholas | No comments

Intentional infliction of emotional distress is a tort claim that is notoriously difficult to plead and prove. The elements seem simple enough: that the defendant’s conduct was “extreme and outrageous”; that the defendant acted with the intention to cause severe emotional distress to the plaintiff (or with reckless disregard for a substantial likelihood that his conduct would cause severe emotional distress); and that severe emotional distress actually resulted from the defendant’s conduct. In practice, such claims are nearly always challenged and frequently dismissed, usually based on a finding that the plaintiff’s emotional distress was not sufficiently severe.

In an interesting decision yesterday, Judge Elaine Bucklo of the U.S. District Court for the Northern District of Illinois denied the City of Chicago’s motion for summary judgment on an intentional infliction of emotional distress claim brought by Chicago resident Maritza Figueroa against two Chicago police officers, Michael Cosentino and Rosemary Accardo. The suit arises from an alleged incident in which Defendant-Officer Accardo threatened to shoot and kill Figueroa’s daughter (also a plaintiff in the case) and Defendant-Officer Cosentino grabbed the daughter by the hair. The officers allegedly fabricated charges against Figueroa to justify their arrest. The complaint alleges that the officers deliberately taunted the plaintiffs and joked about the charges they were going to fabricate, including a false claim that Figueroa jumped on an officer’s back.

Figueroa testified that after the incident she cried a lot, vomited, and eventually sought medical treatment for anxiety. The City argued that this presented insufficient evidence that Figueroa experienced severe emotional distress. The court disagreed, finding that there was a triable issue of fact with regard to whether Figueroa’s distress was sufficiently severe.

The case is Rosario et al. v. City of Chicago, 10 C 6067. The City is represented by outside counsel: Travis Richardson and Myron F. Mackoff. Shiller Preyar and Hamilton Law Office represent the plaintiffs.

Legislation Would Ban Discrimination based on Employment Status

August 15, 2011 in EEOC, Employment Discrimination, Unemployment by Adele Nicholas | No comments

Two bills introduced in congress this term would bar employers and employment agencies from discriminating against job applicants on the basis of their unemployment status. H.R. 1113, dubbed the Fair Employment Act of 2011, would amend Title VII of the Civil Rights Act of 1964 to make unemployment a protected characteristic. H.R. 1113 was referred in April to the House subcommittee on Health, Employment, Labor, and Pensions. The bill was introduced by Rep. Henry Johnson (D-Ga.) and has 52 co-sponsors.

Likewise, H.R. 2501, called (confusingly) the Fair Employment Opportunity Act of 2011, would create a free-standing federal law to prohibit discrimination based on the fact that an applicant is unemployed. The bill was introduced in the House July 12, 2011, by Rep. Rosa DeLauro (D-Conn.) and has 35 co-sponsors. This bill was referred to the House Committee on Education and the Workforce. On August 2, 2011, Sen. Richard Blumenthal, (D-Conn.) introduced a parallel bill in the Senate (S. 1471, the Fair Employment Opportunity Act of 2011).

The idea that refusing to interview or hire someone simply because he or she is unemployed should be illegal has been picking up steam lately, given the awful job market and high unemployment rate. The U.S. Equal Employment Opportunity Commission had a public hearing on the practice in February, aimed at discussing the ways in which the practice has a disparate impact on minorities, older workers and people with disabilities, among whom unemployment rates are higher.

The Library of Congress provides a great tool to track the progress of these bills.

Daley Will Have to Answer Questions about Burge Police Torture Coverup

August 11, 2011 in City of Chicago, Excessive Force, Jon Burge, Police Torture by Adele Nicholas | No comments

U.S. District Court Judge Rebecca Pallmeyer ruled that former Chicago Mayor Richard Daley will remain as a defendant in the case Tillman v. Burge et al., 10 C 4551. Michael Tillman was incarcerated for nearly 24 years before evidence came to light that he had been tortured into confessing to a rape and murder he did not commit by officers under the watch of former Area Two police commander Jon Burge. Tillman’s conviction was vacated in January 2010, and he received a certificate of innocence shortly thereafter. Burge was convicted last year of perjury for lying about his knowledge of police torture at Area Two.

Tillman’s civil suit names Daley as a defendant, alleging that he played a role in the conspiracy to cover up widespread police abuse and torture at Area Two. For now, Daley remains a defendant in the case, although his attorneys are requesting the judge reconsider her ruling. His deposition has been noticed for September 8.