DocketNumber： No. 14 C 6108
Judges： Castillo
Filed Date： 6/21/2016
Status： Precedential
Modified Date： 11/7/2024
MEMORANDUM OPINION AND ORDER
Jhave’ll Moore (“Plaintiff”) brings this action under 42 U.S.C. § 1983 against the City of Chicago (“the City”) and Chicago police officers Sergeant Laura Griffin (“Defendant Griffin”), Officer Maureen Boyle (“Defendant Boyle”), and Officer John Velez (“Defendant Velez”)
RELEVANT FACTS
The facts herein are undisputed unless otherwise stated. On June 9, 2013, at approximately 3:11 a.m., a woman called 911 and reported that a man had just pointed a gun at her. (R. 57, Defs.’ Reply to Facts ¶ 6; see also R. 53-2, Tr. of 911 Call.) She gave her location as Pulaski and Flournoy streets in Chicago, Illinois. (R. 57, Defs.’ Reply to Facts ¶ 7.) She stated that the man had driven off in a vehicle, which she described as a gold Mitsubishi truck with the license plate number of R388356. (Id. ¶ 8.) This information was disseminated over the police dispatch radio through a “flash message,” which is in essence an “emergency message” or “all-points bulletin.” (Id. ¶ 9; see also R. 53-2, Tr. of Police Dispatch; R. 53-1, Peete Dep. Tr. at 29.) Officers Brian Peete and Daniel Linsner (who are not parties to this lawsuit) were dispatched to interview the 911 caller. (R. 57, Defs.’ Reply to Facts ¶ 10.) A few minutes later it was reported over the police radio that the gold Mitsubishi was being driven by a male with dreadlocks and that there was a female passenger in the vehicle.
On that date and time, Defendants Velez and Boyle were on duty, partnered togeth
At approximately 3:17 a.m., Defendants Boyle and Velez were driving southbound on Pulaski when they observed a gold Mitsubishi fail to stop at a red light at the intersection of Harrison and Pulaski. (Id. ¶ 18.) Plaintiff was driving the gold Mitsubishi in question, with his friend Christal Tanksley (“Tanksley”) in the passenger seat. (Id. ¶¶ 80-83.) At the point when officers saw Plaintiffs vehicle, it was roughly six blocks from Pulaski and Flournoy, the intersection where the 911 call had originated. (Id. ¶ 19.) Defendants Boyle and Velez recognized the vehicle description and license plate number from the radio dispatch, although the parties dispute whether they did so immediately or within a few minutes. (Id. ¶ 21.) Defendant Velez activated the police vehicle’s overhead lights to conduct a traffic stop of the Mitsubishi. (Id. ¶ 22.) Plaintiff did not immediately stop but instead turned right onto Fifth Avenue and continued westbound.
During this same period, Defendant Boyle was interacting with Tanksley, the passenger of the car. (Id. ¶ 36.) She, too, was ordered out of the car, placed in handcuffs, and then taken to a police vehicle. (Id. ¶¶ 39, 45.) Once both Plaintiff and Tanksley were in handcuffs, Defendants Griffin and Boyle holstered their weapons. (Id. ¶ 40.) Shortly thereafter, the Defendant Officers, as well as two additional officers who had arrived on the scene, searched Plaintiffs vehicle. (Id. ¶ 41.) During the search, narcotics packaging was discovered in Plaintiff’s vehicle.
After Plaintiff and Tanksley were arrested, Plaintiffs vehicle was impounded, and he and Tanksley were both transported to the 11th District police station. (R. 57, Defs.’ Reply to Facts ¶ 47; R. 53-3, Moore Dep. Tr. at 247-48.) While they were at the station, Tanksley gave the officers a statement describing the incident that led to the 911 call. (R. 57, Defs.’ Reply to Facts ¶¶ 53-58.) She told a detective at the station that Plaintiff had pulled a firearm from his glove box during an altercation with a group of women near the intersection of Pulaski and Flournoy. (Id. ¶ 58.) During her deposition in this case, Tanks-ley testified that she did not actually see Plaintiff with a gun, and claimed that she made this statement to police because a female officer (someone other than the detective) accused her of lying when she said she did not see a gun and threatened to charge her as an accessory; she testified that after being held at the police station for several hours she “got tired” and wanted to leave. (R. 53-5, Tanksley Dep. Tr. at 90, 103-04.) She admitted that no one at the station told her she could not leave unless she gave a particular statement, that no one told her to lie, and that no one promised her anything if she gave a particular statement. (Id. at 143-44.) Tanksley also acknowledged that she repeated her statement to a prosecutor while she was at the station and never told the prosecutor that her statement was untrue. (R. 57, Defs.’ Reply to Facts ¶ 56.)
While Plaintiff and Tanksley were at the police station, the officers completed an arrest report reflecting that Plaintiff was arrested for disobeying a stoplight, disobeying a stop sign, possession of between 2.5 and 10 grams of cannabis, and unlawful use of a weapon. (R. 53-6, Boyle Dep. Tr. at 212-15.) Sometime during this process, Officers Peete and Linsner—the two officers who had been assigned to investigate the 911 call—arrived. (R. 57, Defs.’ Reply to Facts ¶ 94; R. 53-1, Peete Dep. Tr. at 40, 52, 55.) The officers had been unsuccessful in locating the victim, but had spoken with several eyewitnesses, including a man who gave them his name and contact information. (R. 53-1, Peete Dep. Tr. at 33-35, 45-47.) The man reported that a black male had been speaking with a group of women at Pulaski and Flournoy when “words were exchanged” and the male punched one of the females in the face. (Id. at 46.) According to the eyewitness, the black male then “reached into the glove box ... and removed a handgun,” pointed it at one of the women and then drove away. (Id. at 47.) The eyewitness gave a description and license plate number of the vehicle, which matched Plaintiffs vehicle. (Id.) He also gave police the name and phone number of the victim, but they were unsuccessful in reaching her. (Id. at 39.) There were women at the scene who confirmed the male eyewitness’s account, but they would not provide their identifying information to the officers. (Id. at 50-51.)
Plaintiff was formally charged with several offenses in connection with this incident. Because of a prior felony conviction he had for armed robbery—and for which he was on parole at the time of this incident—he was charged with unlawful use of a weapon by a felon. (See R. 53-3, Moore Dep. Tr. at 221, 233-35.) He was also charged with possession of cannabis. (Id. at 221-23.) During the criminal proceedings, Plaintiff moved to suppress the gun
Plaintiff claims that he had a run-in with Defendant Boyle prior to the June 2013 traffic stop. (R. 57, Defs.’ Reply to Facts ¶ 71.) Specifically, he claims that sometime in May 2013, he was driving a different vehicle near his home at 742 S. Kedvale Avenue in Chicago, when Defendant Boyle and an unknown officer assigned as her partner began following him in their police vehicle. (Id. ¶¶ 72-73.) He claims that Defendant Boyle activated her lights and pulled him over, ordered him out of his vehicle and conducted a pat-down search, including checking his pockets. (Id. ¶¶ 74-75.) Plaintiff claims that he asked Defendant Boyle why he had been stopped and she responded that she pulled him over because he “looked like a drug dealer.” (Id. ¶ 76.) Plaintiff claims that he cursed at Defendant Boyle and “went on a rant” because he was angry about the stop. (R. 53-3, Moore Dep. Tr. at 60-61.) After Plaintiff continued to pressure Defendant Boyle for some explanation for the stop, she allegedly responded, “If you don’t like it, do something about it.” (R. 57, Defs.’ Reply to Facts ¶ 77.) Plaintiff claims that upon finding no weapons and no other reason to hold him, Defendant Boyle let him go.
PROCEDURAL HISTORY
In August 2014, Plaintiff filed a pro se complaint challenging his arrest and the search of his vehicle. (R. 1, Compl.) The Court granted his request for appointment of pro bono counsel, and counsel subsequently filed an appearance on his behalf.
Defendants now move for summary judgment on Counts I, II, and VI solely as they relate to the June 2013 traffic stop, and on Counts III, IV, and V in their entirety. (R. 44, Mot. at 1.) Plaintiff filed an opposition to the motion,
LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation omitted). “A genuine dispute as to any material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Kvapil v. Chippewa Cty., Wis., 752 F.3d 708, 712 (7th Cir.2014) (citation and internal quotation marks omitted). In deciding whether a dispute exists, the Court must “construe all facts and reasonable inferences in the light most favorable to the non-moving party.” Nat’l Am. Ins. Co. v. Artisan & Truckers Cas. Co., 796 F.3d 717, 723 (7th Cir.2015) (citation omitted).
Under Rule 56, the movant has the initial burden of establishing that a trial is not necessary. Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627 (7th Cir. 2014). “That burden may be discharged by showing ... that there is an absence of evidence to support the nonmoving party’s case.” Id. (citation and internal quotation marks omitted). If the movant carries this burden, the nonmovant “must make a showing sufficient to establish the existence of an element essential to that party’s case.” Id. (citation and internal quotation marks omitted). The nonmovant “must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file) to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in [their] favor.” Id. (internal quotation marks and citation omitted). “The existence of a mere scintilla of evidence, how
In deciding a motion for summary judgment, the Court cannot weigh conflicting evidence, assess the credibility of the witnesses, or determine the ultimate truth of the matter, as these are functions of the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Omnicare, Inc. v. United-Health Grp., Inc., 629 F.3d 697, 704-05 (7th Cir.2011). In other words, “summary judgment cannot be used to resolve swearing contests between litigants.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003). Instead, the Court’s role is simply “to determine whether there is a genuine issue for trial.” Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). Nevertheless, summary judgment is appropriate when a video clearly refutes the non-movant’s version of events. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”); see also Felton v. City of Chicago, 827 F.3d 632, 637, 2016 WL 3536642, at *3 (7th Cir. June 28, 2016) (observing that summary judgment is appropriate if a police video “clearly contradicts” the plaintiffs account).
ANALYSIS
Defendants move for summary judgment on Counts I, II, and VI solely as they relate to the June 2013 traffic stop, and on Counts III, IV, and V in their entirety. (R. 44, Mot. at 1.) The Court addresses each count below.
I. Counts I and III
Because Plaintiffs June 2013 arrest is the focal point of the amended complaint, the Court begins with Plaintiff’s false arrest claim. In Count III, Plaintiff alleges that the Defendant Officers “restrained and arrested [him] without probable cause and without having reasonable grounds to believe that [he] had committed an offense.” (R. 33, Am. Compl. ¶ 50.) Relatedly, in Count I, Plaintiff alleges that he was subject to an unreasonable seizure in violation of the Fourth Amendment in connection with the traffic stop. (Id. ¶ 38.)
Probable cause to arrest is an absolute defense to a Fourth Amendment claim for false arrest. Williams v. Brooks, 809 F.3d 936, 942 (7th Cir.2016). “Probable cause means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” United States v. Hill, 818 F.3d 289, 294 (7th Cir.2016) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)) (internal quotation marks omitted). “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). In addition, “an arrest is reasonable under the Fourth Amendment so long as there is probable
In his response to the motion, Plaintiff concedes that there was probable cause for his arrest, given that he can be viewed on the dash-cam video committing various traffic offenses. {See R. 55, Pl.’s Mem. at 2 n.l.) He further concedes that the video defeats his false arrest claim. {Id.) This concession is well-taken. See Scott, 550 U.S. at 380, 127 S.Ct. 1769; see also Williams, 809 F.3d at 942 (“[I]t is not a violation of the Fourth Amendment to arrest an individual for even a very minor traffic offense.” (citation and internal quotation marks omitted).)
Although Plaintiff does not offer a direct concession as to Count I—the “unlawful seizure” claim—this claim fails for the same reason: The law is clear that Plaintiffs commission of traffic offenses would provide a proper basis for the officers to stop Plaintiff and order him out of the vehicle. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”); see also Maryland v. Wilson, 519 U.S. 408, 412, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (“[OJnce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable seizures.”). Thus, to the extent Count I challenges the Defendant Officers’ decision to pull Plaintiff over and order him out of his vehicle, it too is unavailing.
Although it is not entirely clear from the complaint, Plaintiff may also be claiming that the seizure was unlawful because the officers should not have had their guns drawn as they approached his vehicle. (R. 33, Am. Compl. ¶¶ 24, 25, 36-38.) This is in essence an excessive force claim, which must be analyzed under the objective reasonableness standard of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Cyrus v. Town of Mukwonago, 624 F.3d 856, 861 (7th Cir. 2010). An officer’s use of force is considered unreasonable only if “judging from the totality of the circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.” Gonzalez v. City of Elgin, 578 F.3d 526, 539 (7th Cir.2009) (citation omitted). In making this determination, the Court must consider “the specific circumstances of the arrest, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Cyrus, 624 F.3d at 861 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).
The Court must also bear in mind that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving” regarding the amount of force that is necessary in a given situation. Ryburn v. Huff, 565 U.S. 469, 132 S.Ct. 987, 992, 181 L.Ed.2d 966 (2012); see also Cyrus, 624 F.3d at 861 (observing that “law-enforcement officers must make critical, split-second decisions in difficult and
Even construing the facts in the light most favorable to Plaintiff, the record shows that the officers acted reasonably under the circumstances. The undisputed facts show that at the time of this incident, police had received a 911 call reporting that a man had just pulled a gun on a woman. (R. 57, Defs.’ Reply to Facts ¶ 6.) Roughly five minutes later and a short distance away, the officers saw the exact vehicle described by the 911 caller down to the license plate number. (Id. ¶¶ 7-8, 15-21.) They personally observed the vehicle run a red light. (Id. ¶ 18.) They attempted to execute a traffic stop, but the driver did not immediately pull over and instead continued to drive (at least a short distance), committing another traffic violation. (Id. ¶¶ 23-27.) As the officers approached the vehicle, Defendant Griffin (the highest-ranking officer on the scene) saw Plaintiff make a movement to the right of his steering wheel. (Id. ¶ 31.) She called out to the other officers that Plaintiff was “reaching,” because she viewed this as concerning. (Id. ¶ 32; R. 53-7, Griffin Dep. Tr. at 103-08, 216-23.) Although Plaintiff denies that he was doing anything suspicious, his deposition testimony makes clear that his hands were off the steering wheel, at least briefly, while he was looking for his driver’s license in a compartment to the right of the wheel. (See R. 53-3, Moore Dep. Tr. at 145.) The officers approaching the vehicle could not have known Plaintiffs subjective intentions and could reasonably find his actions suspicious in light of the other information known to them. See United States v. Walton, 827 F.3d 682, 689, 2016 WL 3568062, at *5 (7th Cir. June 30, 2016) (“[B]ehavior which is susceptible to an innocent explanation when isolated from its context may still give rise to reasonable suspicion when considered in light of all of the factors at play.” (citation omitted)). Given the circumstances, the Court concludes that the officers did not act unreasonably in drawing their weapons as they approached Plaintiffs vehicle. See United States v. Smith, 697 F.3d 625, 632 (7th Cir.2012) (officer brandishing gun while conducting an investigatory stop of the suspect in an armed robbery did not act unreasonably); United States v. Askew, 403 F.3d 496, 508 (7th Cir.2005) (officers acted reasonably in approaching suspect’s vehicle with guns drawn where there was reason to believe that the suspect might be armed).
In addition, the Court has viewed the dash-cam video multiple times, and it does not, under any reasonable interpretation, depict unduly aggressive use of weapons by the officers in effectuating Plaintiffs arrest. See Scott, 550 U.S. at 380, 127 S.Ct. 1769. Rather, the officers with their weapons drawn can be seen standing at some distance from the vehicle. Defendant Velez, the officer standing closest to Plaintiff, did not have his weapon drawn and instead simply ordered Plaintiff out of the vehicle. Plaintiff then got out of the vehicle on his own. (R. 53-2, Dash-Cam Video.) The parties agree that the officers holstered their weapons as soon as Plaintiff and his passenger were in handcuffs. (R. 57, Defs.’ Reply to Facts ¶ 40.) Even construing the record in Plaintiffs favor, he has not established a Fourth Amendment violation.
II. Count II
In Count II, Plaintiff alleges that he was subjected to an unlawful search in violation of the Fourth Amendment. (R. 33, Am. Compl. ¶¶ 42-48.) Given the way the amended complaint is drafted, it is not entirely clear if Plaintiff is challenging the search of his person that occurred during the June 2013 traffic stop, the search of his vehicle, or both. (See id.) But any claim challenging the search of Plaintiff’s person would fail, because he concedes that the officers had probable cause to arrest him for traffic offenses. (See R. 55, Pl.’s Mem. at 2 n.l.) A search incident to a lawful arrest is permissible under the Fourth Amendment. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (“[I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”); United States v. Williams, 209 F.3d 940, 943 (7th Cir.2000) (“Searches incident to arrests are valid in order to find weapons and to search for and seize any evidence on the arrestee’s person in order to prevent concealment and to preserve evidence for trial.”).
Even absent Plaintiffs concession regarding the traffic violations, this Court would conclude that the police had probable cause to arrest him for assault with a firearm.
In this case a female 911 caller reported that a man had just pulled a gun on her. (R. 57, Defs.’ Reply to Facts ¶¶ 6-8.) She gave a detailed description of the vehicle he was driving, including the make, model, color, and license plate number. (Id.) Given the nature of the report, police had a need to act quickly in responding to the call. See United States v. Drake, 456 F.3d 771, 774 (7th Cir.2006) (recognizing “the particular duty of police officers to speedily respond to emergency situations reported by individuals through the 911 system”). Within minutes and mere blocks from where the call originated, Defendants Boyle and Ve
Based on the totality of the circumstances, the Court finds that the police acted reasonably in arresting Plaintiff when he exited his vehicle.
The search of Plaintiffs vehicle must be analyzed separately. “War-rantless searches are per se unreasonable under the Fourth Amendment unless they fall within ‘a few specifically established and well-delineated exceptions.’ ” Charles, 801 F.3d at 860 (quoting Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)). One such exception is the “automobile exception,” which “permits the police to search a vehicle if there is probable cause to believe it contains evidence of criminal activity.” Id. “The authority to search encompasses any area of the vehicle where evidence of the crime might be found.” Id. Thus, “if there is probable cause to search a vehicle for contraband or evidence of a crime, a police officer may search containers within the vehicle that could hold such evidence.” Id. Probable cause for the search can be based on any suspected criminal activity, not simply the offense for which the individual was actually arrested. United States v. Edwards, 769 F.3d 509, 514 (7th Cir.2014).
The Court concludes that the facts and circumstances known to the Defendant Officers would lead a reasonably prudent person to believe that Plaintiffs vehicle contained contraband or evidence of a crime. As stated above, the police received a 911 call from a woman stating that a man had just pulled a gun on her. (R. 57, Defs.’ Reply to Facts ¶¶ 6-7.) She described his vehicle down to the license plate number and provided a detailed description of the vehicle’s occupants. (Id. ¶ 8.) Plaintiffs vehicle was seen by police minutes later and only a few blocks from the location given by the 911 caller. (Id. ¶¶ 18-19.) The vehicle and its occupants matched the description given. (Id.) The police personally witnessed the vehicle committing traffic violations, including running a red light—a potentially dangerous infraction—and the driver failed to immediately pull over when police attempted to conduct a traffic stop. (Id. ¶¶ 18-27.) As the officers approached, Plaintiff was seen making a movement to the right of his steering wheel. (Id. ¶ 31.) Although Plaintiff offers various explanations for his actions, from an objective standpoint his actions could be viewed as suspicious. In addition, a valid search of Plaintiffs person incident to his arrest revealed suspected narcotics hidden inside one of his socks. (Id. ¶ 44.)
Based on the circumstances, the Court concludes that police had probable cause to believe that Plaintiffs vehicle contained a firearm, drugs, or related contraband or evidence of criminal activity.
As to the Gant exception, the record shows that Plaintiff and his passenger were both handcuffed and sitting inside police vehicles at the time his vehicle was searched, so that the first part of the Gant exception would be inapplicable. See Gant, 556 U.S. at 351, 129 S.Ct. 1710 (permitting search of vehicle where arrestee was “within reaching distance of the passenger compartment at the time of the search”). But the Court has concluded that the police had probable cause to arrest Plaintiff for assault with a firearm, and for the reasons already outlined, it was reasonable for them to believe that Plaintiffs vehicle contained evidence pertaining to that offense, ie., the firearm. See id. (permitting search where it is “reasonable to believe the vehicle contains evidence of the offense of arrest”). The search of Plaintiffs vehicle was thus permissible under the Fourth Amendment. For these reasons, Defendants are entitled to summary judgment on Count II to the extent it challenges the June 2013 traffic stop.
III. Counts IY and V
In Counts IV and V, Plaintiff alleges claims for conspiracy and failure to intervene. (R. 33, Am. Compl. ¶¶ 55-64.) In the conspiracy count, which is directed to “All Defendants,” Plaintiff alleges that “Defendants, acting together and under color of law, reached an understanding and agreement, engaged in a course of conduct and otherwise conspired among and between themselves” to violate Plaintiffs constitutional rights. (Id. ¶ 56.) In the failure-to-intervene count, which is also directed against “All Defendants,” Plaintiff alleges in general terms that “[o]ne or more of the Defendants had a realistic opportunity to intervene and prevent the violation of [his] Constitutional rights, but stood by and failed to do so.” (Id. ¶ 61.) Plaintiff does not clearly delineate whether these claims are premised on the May 2013 stop, the June 2013 stop, or both, although he incorporates by reference the allegations describing both incidents. (See id. ¶¶ 55, 60.)
To the extent these counts are based on the June 2013 traffic stop, the Court agrees with Defendants that they fail under the applicable law. Claims of conspiracy require an underlying constitutional violation to be viable. Smith v. Gomez, 550 F.3d 613, 617 (7th Cir.2008) (“[Conspiracy is not an independent basis of liability in § 1983 actions.”); Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir.2000) (observing that “there is no constitutional violation in conspiring to coverup an action which does not itself violate the Constitution,” and thus jury verdict for the defendants on the plaintiffs false arrest and malicious prosecution claims “foreclose^] relief on the conspiracy claim” (citation omitted)); Kola v. Vill. of Harwood Heights, No. 13-cv-08923, 2014 WL 4057370, at *5 (N.D.Ill. Aug. 14, 2014) (“[B]ecause the Court finds that there was probable cause and therefore no constitutional violation, the conspiracy claim under federal law necessarily fails as well.”).
The same rule applies to a claim for failure to intervene. Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir.2005) (“In order for there to be a failure to intervene, it logically follows that there must exist an underlying constitutional violation[.]”); Fillmore v. Page, 358 F.3d 496, 506 (7th
Defendant does not believe that Plaintiff adequately alleged in the complaint that these claims were also based on the May 2013 traffic stop, but assuming he did, such claims find no support in the record. Plaintiff purports to bring his conspiracy and failure-to-intervene claims against all Defendants, but he has not presented evidence that any Defendant Officer other than Defendant Boyle was present during the May 2013 traffic stop.
Similarly, as to the conspiracy claim, Defendant Boyle cannot be held liable for “conspiring” to violate Plaintiffs rights by herself. See United States v. Penny, 60 F.3d 1257, 1262 (7th Cir.1995) (conspiracy requires an agreement between at least two people); Scherer v. Balkema, 840 F.2d 437, 441 (7th Cir.1988) (conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means” (citation omitted)). There is no evidence in the record to show that Defendants Griffin and Velez conspired with Defendant Boyle to violate Plaintiffs rights in connection with the May 2013 incident. Without some tangible evidence to support his conspiracy claim, Plaintiff cannot proceed to trial on this claim.
IV. Count VI
Finally, in Count VI, Plaintiff seeks indemnification from the City under 745 III. Comp. Stat. 10/9-102 based on the actions of the Defendant Officers. (R. 33, Am. Compl.1ffl 65-67.) The Court agrees with Defendants that the indemnification claim fails as to the June 2013 traffic stop, because Plaintiff has failed to establish any wrongdoing by the Defendant Officers in connection with this incident. Illinois law explicitly provides that “[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” 745 III. Comp. Stat. 10/2-109; see also Vill. of Bloomingdale v. CDG Enters., Inc., 196 Ill.2d 484, 256 Ill.Dec. 848, 752 N.E.2d 1090, 1100 (2001) (“[Sjection 2-109 provides that a local public entity is not liable where its employee is not hable.”); Ross v. Mauro Chevrolet, 369 Ill.App.3d 794, 308 Ill.Dec. 248, 861 N.E.2d 313, 320 (2006) (claims against municipality were moot where its police officers were not hable for Fourth Amendment violation). Therefore, Defendants are entitled to summary judgment on Count VI to the extent it is based on the June 2013 traffic stop.
What remains of this case at this point are Plaintiffs unlawful search and seizure claims (Counts I and II) arising from the May 2013 incident with Defendant Boyle, and his claim seeking indemnification from the City (Count VI) based on the May. 2013 incident. Plaintiffs allegations underlying these claims detail a very brief encounter with a CPD officer wherein he was pulled over, patted-down, and released. (R. 33, Am. Compl. ¶¶ 13-19.) As the incident is recounted by Plaintiff, it would appear, to involve very minimal damages. Defendant Boyle has no recollection of this incident occurring, (R. 53-6, Boyle Dep. Tr. at 152, 290), and Plaintiff has apparently been unable to uncover documentary evidence proving that Defendant Boyle actually executed a traffic stop of his vehicle during May 2013. (See R. 57, Defs.’ Reply to Facts ¶ 79.) Given the dramatically altered scope of this lawsuit and the nature of the claims that remain at this point, the Court urges the parties to reevaluate their settlement positions and to exhaust all efforts to settle the remainder of this case.
CONCLUSION
For these reasons, Defendants’ motion for partial summary judgment (R. 44) is GRANTED. The Court enters judgment in favor of Defendants on Counts III, IV, and V in their entirety, and on Counts I, II, and VI-to the extent they are based on the traffic stop occurring on June 9, 2013. The parties shall appear for a status hearing on August 31, 2016, at 9:45 a.m.
. The individual defendants are referred to collectively herein as "Defendant Officers.” The Defendant Officers and the City are referred to collectively as "Defendants.”
. This information was not included in the original 911 call. (See R. 53-2, Tr. of 911 Call.) The exact source of the information is not clear from the present record, but it appears that Officers Linsner and Peete were on the scene shortly after the 911 call came in and that they interviewed eyewitnesses who provided the more detailed description of the occupants of the vehicle given in the second police dispatch. (See R. 53-6, Boyle Dep. Tr. at 283.)
. Plaintiff denies this fact without explicitly denying that he drove through a red light or failed to stop at a stop sign. (R. 53, Pl.’s Resp. to Facts ¶ 23.) Instead he offers various explanations for his actions, including that he "mistook the light at Fifth Ave. as applying to him” when he was on Pulaski, and that he did not immediately pull over when Defendant Velez activated his police lights because “he wasn’t sure whether the police were trying to get him to pull over or to go around him.” (Id.) He states that it took him “about 12 seconds to determine that the lights were for him.” (Id.) He offers similar explanations in response to Defendants’ facts listed at paragraphs 24, 26, and 27, without providing evidence to directly undercut the Defendant Officers’ versions of events. (See id. ¶¶ 24, 26, and 27.) Plaintiff's subjective explanations do not undercut the defense’s version of events, and Plaintiff's vehicle can clearly be scene on the dash-came video disobeying a stop light, swerving around Defendant Griffin’s police vehicle, and disobeying a stop sign before pulling over. He also admits elsewhere in the record that he committed traffic violations that evening. (See R. 53-3, Moore Dep. Tr. at 18; R. 53, Pl.’s Resp. to Facts ¶ 66.) Therefore, the Court deems each of these facts admitted.
. The dash-cam video capturing this incident has been submitted by the parties. (R. 53-2, Dash-Cam Video.) For unknown reasons the camera did not record any audio. (R. 57, Defs.’ Reply to Facts ¶ 97.) Plaintiff finds the lack of audio suspicious, but he has not provided any evidence to suggest that Defendants tampered with or otherwise engaged in intentional wrongdoing in connection with the video. The record reflects that there were various technical reasons why the audio function may not have worked. (See R. 53-9, Becvar Dep. Tr. at 90-92.) Plaintiff also makes much of the fact that the video stops after approximately 16 minutes while the doors of Plaintiff’s vehicle were open and police officers were still on the scene. (See R. 57, Defs.’ Reply to Facts ¶¶ 99-102.) But the key events related to the traffic stop were all captured on video, and there is no evidence to suggest that the offi
. In response to this fact Plaintiff states— without any citation to the record—-"Plaintiff admits the testimony is correctly cited, but denies that it is undisputed.” (See R. 57, Defs.' Reply to Facts ¶ 43.) It is unclear what this means. The Local Rules require Plaintiff to specifically reference supporting material when objecting to a statement of fact. N.D. Ill. L.R. 56.1(b)(3)(B); see also Malee v. Sanford, 191 F.R.D. 581, 584 (N.D.Ill.2000). He has not complied with this Rule or pointed to any evidence that would support his denial. Accordingly, the Court deems this fact admitted.
. According to Plaintiff's testimony, he and Tanksley were out that night looking for a "female to have a threesome with.” (R. 53-3, Moore Dep. Tr. at 115.) He stopped when he saw a "crowd of females” near the intersection of Pulaski and Flournoy who appeared to be drinking and "[h]aving a good time.” (Id. at 116-17.) He was speaking with one of the women through the passenger side window when another woman came up and threw her drink on Plaintiff and Tanksley. (Id. at 118.) Plaintiff testified that he swore at the woman and "tried to give chase” when she ran off, but then realized he could not catch her. (Id. at 120-23.) He testified that he “cursed out” the woman's friends and then drove off. (Id. at 124-25.)
. There is some suggestion in the record that the dash-cam video originally could not be located, and that it was only discovered later during the course of this lawsuit. (See R. 53-6, Boyle Dep. Tr. at 236; R. 53-8, Velez Dep. Tr. at 34-35.) The record does not reveal why the prosecution did not introduce the 911 call at the suppression hearing.
. Plaintiff further testified that approximately a week after the May 2013 incident, he saw Defendant Boyle driving in her police vehicle when he was going for a run in the neighborhood. (R. 53-3, Moore Dep. Tr. at 85.) He claimed that he "gave her the middle finger” and that she slowed down to look at him but continued driving, (Id. at 89.)
.The Court wishes to thank attorneys Margaret A. Gisch and Matthew P. Bachochin and the law firm of Golan & Christie LLP for ably serving as appointed counsel in this case.
. Defendants complain that Plaintiff filed a timely response to the motion and then filed a "corrected” response containing additional arguments one day past the deadline set by the Court. Defendants ask that the corrected response be stricken. (See R. 56, Defs.’ Reply at 2-3.) Plaintiff should have sought leave to file this document, but given the very minimal delay and the lack of any identifiable prejudice to Defendants (as well as the fact that Plaintiff's attorneys are graciously serving by appointment in this case), the Court declines to strike the corrected response. The Court accepts this document (R. 55) as the operative responsive filing from Plaintiff.
. Under Illinois law, the crime of aggravated assault occurs when a person engages in conduct which places another in reasonable apprehension of receiving a battery and uses a firearm in the course of the offense. 720 III. Comp. Stat. 5/12-1, 5/12-2(c)(l).
. When Officer Linsner and Peete responded to the 911 call, a second individual confirmed the caller’s account and also provided the officers with both his and the 911 caller’s contact information. (R. 57, Defs.’ Reply to Facts ¶¶ 12-13.) Although this further bolsters the reliability of the call, the Court did not consider these facts because, as Plaintiff points out, it is not clear from the record that this information was known by the arresting officers at the time of Plaintiff’s arrest. See Bruce v. Guernsey, 777 F.3d 872, 878 (7th Cir.2015) (observing that the Fourth Amendment analysis turns solely on facts known to the police at the time of their actions). For the same reason, the Court has not given any consideration to the post-arrest statements made by Tanksley in determining whether there was probable cause for Plaintiff's arrest.
. The Seventh Circuit has noted that Gant did not clearly delineate "whether the 'offense of arrest’ is limited to the crime for which the defendant was 'actually arrested’ or includes other crimes that the officer had probable cause to believe occurred.” Edwards, 769 F.3d at 515. In the Seventh Circuit’s view, "Justice Scalia’s concurrence in Gant suggests both would qualify.” Id. (citing Gant, 556 U.S. at 353, 129 S.Ct. 1710 (Scalia, J„ concurring)).
. Plaintiff makes a brief argument that his arrest "was merely a pretense” to justify the search of his vehicle, which in his view makes the search improper. (R. 55, PL’s Mem. at 10.) Arguments about "pretext" are "misplaced in the Fourth Amendment context.” Edwards, 769 F.3d at 516. "The reasonableness of a search does not depend on the officer’s subjective motivations; the inquiry is, of course, objective.” Id. (emphasis in original).
. In his deposition testimony, Plaintiff made a vague reference to a male officer being present during the alleged traffic stop occurring in May 2013. (See R. 53-3, Moore Dep. Tr. at 54.) However, he has not provided any evidence to link this incident to a named Defendant other than Defendant Boyle. Defendant Boyle testified that she was partnered with Officers Jordan Poulis and Richard Reimer during May 2013, (R. 53-6, Boyle Dep. Tr. at 45-54), and Plaintiff has not pointed to any evidence in the record to refute this, nor has he named these individuals in this lawsuit.
. Plaintiff argues in passing that the “blatant disregard for General and Special Orders” supports his conspiracy claim. (R. 55, PL's Mem. at 14-15.) He does not elaborate, but the Court surmises that he is referring to Defendant Boyle’s alleged failure to comply with a police special order requiring that a "contact card” be completed when an officer conducts a traffic stop but does not make any arrest or issue a traffic citation. (See R. 55, Pl-’s Mem. at 4.) However, the special order he points to in support of this argument has an effective date of January 2015. (R. 53-10, Special Order S04-13-09.) The incident he is complaining about allegedly occurred in May 2013, almost two years earlier. This document thus falls far short of raising a genuine issue for trial. To the extent Plaintiff is referring to general or special orders governing in-dash cameras, those arguments relate to the June 2013 traffic stop and are addressed in footnote 2, supra.