Harris v. Richardt

Opinion

INTHEUNITEDSTATESDISTRICTCOURT FORTHE NORTHERNDISTRICT OFILLINOIS,EASTERNDIVISION JonathanC.Harris, Plaintiff, v. CaseNo.15CV5563 TheHonorableJorgeL. Alonso JosephRichardt, Defendant.

DEFENDANT’SMOTIONFORJUDGMENT ASAMATTEROFLAW Defendant, Joseph Richardt, by his counsel, Ellen K. Emery and Lucy B. Bednarek of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., moves this Court pursuant to Federal Rule of Civil Procedure 50(a) for Judgment as a Matter of Law. In support of this motion,Defendantstates asfollows: I. INTRODUCTION Federal Rule of Civil Procedure 50(a) provides that “if a partyhas been fullyheard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may grant a motion for judgment as a matter of law against the party.” When ruling on a motion for judgment as a matter oflaw,“[t]he mereexistenceofascintillaofevidenceinsupport of theplaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”Andersonv. Lobby,477U.S.242,252 (1986).

Plaintiff Jonathan Harris brought this Section 1983 excessive force action against Zion Police Officer Richardt for injuries arising from a police shooting of Harris that took place on Defendant is entitled to judgment as a matter of law on Harris’ excessive force claim

because plaintiff presented no evidence to establish that Officer Richardt’s use of force was not justifiedunderthecircumstances. II. THE EVIDENCE Theevidenceshows thefollowing: On the afternoon ofJune 3, 2014,Zion policeofficers Joseph Richardt and Derek Zaloudek initiated a traffic stop of a black Dodge Charger near the 2300 block of Lewis Avenue in Zion, Illinois. Plaintiff Jonathan Harris was the driver, and he hadtwo passengers in thecar.Jennifer Smith was seated in the front passenger seat,and Andrew Ayers was seated in the back seat behind Smith. Officer Richardt approached plaintiff’s side of the car, and Officer Zaloudek approached Smith’s side of the car. When asked for his driver’s license and proof of insurance, plaintiff handed Officer Richardt a temporary driving permit, a rentalcaragreement, and fleetinsurance-- allregisteredtoaJoshua Ferguson. Officer Richardt determined thatplaintiffwas drivingwithout avalid licenseand decided to place plaintiff under arrest. Because there were three individuals and only two officers,

Richardt called for another officer to respond to the scene to provide backup. Soon after, Sergeant Duane Arrington arrived on scene. By that time, Smith had stepped out of the car, and was speaking with Officer Zaloudek on the side of the road. Ayers remained in the back seat. When Sergeant Arrington arrived and began approaching the car, plaintiff said “Uh oh.” Officer Richardt motioned for Arrington to come over by him. When Arrington was standing next to him, Richardt attempted to arrest plaintiff. Richardt noticed the car door was locked and pulled the mechanism to unlock the door. He then opened the driver side front door and at the same timeasked plaintiff to step outof the car. Instead of gettingout of the car, plaintiff grabbed thegearshifterinthecenterconsul,putthevehicleintodriveandspedoff. Ayers was stillinthe

backseatofthecar. Officer Richardt yelled at the driver to put the vehicle in park. Plaintiff ignored him and continued to accelerate rapidly, dragging Richardt along with the car. Richardt was holding onto plaintiff with his right hand and part of the car with his left hand. As the car accelerated and he was being dragged along with the car, Richardt knew he was in danger. He made a split second decision to step inside the car and hold on to avoid being run over or thrown into oncoming traffic and severely injured. He was very near plaintiff while holding on to something inside the car,likelythesteeringwheel. Richardt was notstraddlingplaintiff. Rather, Richardtwas halfway in and halfway out of the car. Richardt repeatedly told plaintiff to stop the vehicle, but plaintiff refused. Richardt could hear the engine as they drove down the street and the wind rushing outsidethecar. Further, thecardoorwas open behind Richardt and hebelieved he could easilyfalloutof the car and be killed. He did not know if plaintiff or Ayers were armed. Richardt feared for his

own life and the lives of the individuals in the car. He drew his firearm from his holster with his right hand. Richardt told the driver to stop or that he would kill him. Plaintiff did not stop but continuedtoaccelerate. Officer Richardt knew if this continued the car would continue to travel faster and he would be in a more dangerous situation. He, or the other occupants in the car, could likely die. Richardt did not want to shoot plaintiff in the head or chest because he did not want to kill plaintiff or shoot Ayers, who was still in the backseat of the car. Instead, Richardt followed his trainingand shotplaintiffin thepelvicgirdle. He was trained thatshootingsomeoneinthe pelvic girdleis wayto stop athreat.Richardt puthis firearmto theleftsideofplaintiff’s pelvis andshot plaintiff twice at a downward angle. Immediately after Richardt shot plaintiff, plaintiff braked

and the car slowed and stopped. Shooting plaintiff stopped the threat to Richardt, Ayers and all motorists and pedestrians in the area – a threat that plaintiff created. Richardt immediately requested an ambulance to respond to the scene. Plaintiff was placed under arrest and was taken tothehospital. Officer Zaloudek also testified that as plaintiff sped off, he observed Officer Richardt hanging half in and half out of the car. Zaloudek feared Richardt would be killed if he fell out of the car or was struck from the vehicles in traffic. As Richardt was being dragged away by plaintiff’s car, Zaloudek observed Sergeant Arrington get hit by a part of plaintiff’s car, causing Arrington to flip around, and fall and strike his head on the ground. Zaloudek then heard two gunshots and saw the car come to a quick stop. Zaloudek did not know who did the shooting. He calledoutontheradiothatshots werefired,and rantoplaintiff’scartoassistRichardt. As a result of this incident, on June 24, 2015, plaintiff pled guilty to Aggravated Fleeing or Attempting to Elude a Peace Officer (Enhanced) in Case No. 14 CF 1676 (Lake County,

Illinois). Plaintiff was sentenced to 82 months incarceration at the Illinois Department of Corrections. Plaintiffadmitstoattemptingtofleetoavoid arrest.Plaintiff also admits that if he had not put his vehicle in drive but rather, would have stayed and obeyed Officer Richardt’s commands,hewouldnothavebeenshot. III. OFFICERRICHARDT’SUSE OFFORCE WASJUSTIFIED. To establish his case under Section 1983, plaintiff bears the burden of proving by a preponderance of the evidence that Officer Richardt’s use of force was unreasonable under the circumstances.Asamatteroflaw,Richardt’suse offorcewas justifiedhere. A police officer’s use of deadly force is a seizure subject to the reasonableness

requirementsofthe FourthAmendment. Tennesseev.Garner,47 U.S.1(1985). Deadlyforceis justified if the officer reasonablybelieves it is necessaryto protect himself or another from death orgreatbodilyharm. Id.;Penav.Leombruni,200 F.3d1031(7th Cir.1999). The court’s inquiry focuses on “whether the officer’s decision to use deadly force was objectively reasonable.” Maravilla v.United States, 60 F.3d 1230, 1233 (7th Cir. 1995)(emphasis in original). Whether Richardt acted reasonably in shooting plaintiff must be determined “in light of the facts and circumstances confronting [him] at the moment [he] acted.” Maravilla, at 1233, (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). In addition, “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. The “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.” Id.at 396-97. Thereasonableforceanalysis considers the “severityof thecrimeatissue, whether

the suspect poses an immediate threat to the safety of the officer or others, and whether he is activelyresistingarrestorattemptingtoevadearrestbyflight. Id.at396. When an officer believes that a suspect's actions place him, his partner, or those in the immediate vicinity in imminent danger of death or serious bodily injury, the officer can reasonably exercise the use of deadly force. Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir.2002). Further, if the suspect threatens the officer with a weapon, the risk of serious physical harm to the officer or others has been established. Bell v. Irwin, 321 F.3d 637, 639 (7th Cir.2003). See also Plumhoff v. Rickard, 134 S.Ct. 2012 (2014) (no excessive force found when suspect was killed by police in high speed car chase after police fired 15 shots into his vehicle); Scott v. Harris, 550 U.S. 372 (2007) (finding that “the car chase that respondent initiated in this

caseposed asubstantial and immediate risk of serious physical injuryto others” and the officer’s attempttoterminatethechasebyforcingrespondentofftheroad wasreasonable). Plaintiff’s attempt to flee the scene, and his failure to stop the car with Officer Richardt hanging onto to it was sufficientlylethal and imminent to justifyRichardt’s use of deadly force. These circumstances show plaintiff placed himself, Ayers and Richardt in imminent danger of seriousbodilyinjuryorworse. Plaintiff was in control of and threatening Officer Richardt’s life with a deadly weapon – a 3000 pound car that could be used as a missile. Richardt was being dragged along with the car. With every second the car continued to accelerate, the missile was becoming even deadlier. Richardt was not required to wait to be thrown out of car and into oncoming traffic and run over before using deadlyforce to stop plaintiff. Significantly, Lewis Avenue was described as a busy street, with a 45 mph speed limit, and no median separating Richardt from the fast-moving cars travelingontheothersideofthestreet.

Further, plaintiff was not only threatening Richardt’s life as he sped away in reckless manner, but he also was threatening the life of passenger Ayers and the lives of all other pedestrians and motorists in the area. The evidence shows plaintiff never abandoned his attempt to flee. Plaintiff’s recklessness in an attempt to evade arrest posed a “grave public safety risk.” SeePlumhoff,134S.Ct.at2022. If ever there was a “split-second judgment in circumstances that are tense, uncertain, and rapidly evolving,” it was here. The facts are undisputed that plaintiff put the car in drive and sped away with Officer Richardt hanging onto car. It is also undisputed that plaintiff was trying to get away to avoid arrest and drove away recklessly. It is further undisputed that plaintiff refused to slow down and did not slow down until he was shot. Notably, Richardt did not shoot

to kill plaintiff. Rather, Richardt’s intent when shooting plaintiff’s pelvic girdle was to stop the threatcreatedbyplaintiff,notkillplaintiff. The evidence shows Richardt’s use of force was objectively reasonable in light of the facts and circumstances surrounding him when he acted. Therefore, this Court should grant judgmentasa matteroflawinfavorofdefendant OfficerJosephRichardt. IV.OFFICERRICHARDT ISENTITLEDTO QUALIFIEDIMMUNITY In the alternative, Officer Richardt is entitled to qualified immunity. Qualified immunity applies to governmental employees performing discretionary functions and shields them from “liability for civil damages, insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 475 U.S. 800, 818 (1982); Filarsky v. Delia, 566 U.S. 377 (2012). When qualified immunity is raised, a two-part inquiry is triggered. The first inquiry addresses whether a plaintiff’s complaint states a constitutional violation. The second examines whether the constitutional right was

clearly established at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 227 (2009). In deadly force cases, qualified immunity shields a police officer from liability for civil damages if “areasonable officer, facingthesame situation, could havebelieved thatdeadlyforce was necessary to protect himself or others from death or serious physical harm.” Ellis v. Wynalda, 999 F.2d 243, 246 (7th Cir.1993). This immunity “gives ample room for mistaken judgmentsbyprotectingallbuttheplainlyincompetentorthosewho knowinglyviolatethelaw.” Hunterv.Bryant,502U.S.224,229(1991). First, as explained above, no constitutional violation occurred because no excessive force

in violation of the Fourth Amendment occurred. Second, qualified immunity protects Officer Richardt because a reasonable officer could have believed that shooting plaintiff was necessary to protect not onlythe officer’s life, but the life of passenger Ayers, and pedestrians or motorists in the area. Plaintiff’s actions of speeding off with Officer Richardt hanging half in and half out ofthecarcreated animminentthreat–athreatthattheshootingstopped. There is no settled Fourth Amendment principle that required Officer Richardt to let go of the car and risk being run over by plaintiff’s car or thrown into oncoming traffic and killed himself before shooting plaintiff. See White v. Pauly, 137 S.Ct. 548 (2017). In other words, Richardt’s attempt to terminate a dangerous situation that threatened his life and the lives of innocentbystanders does notviolatethe Fourth Amendment, even when it placed plaintiff at risk of serious injury or death. Further, it was not clearly established that it was unconstitutional to shoot a fleeing driver, like plaintiff, whose flight put Richardt’s life and the life of others in danger. In Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014), the officers were entitled to

qualified immunity in shooting a suspect in a high speed car chase because the shooting of plaintiff put to end a high speed pursuit that indisputably posed a danger to the officers involved and any civilians nearby – it was not clearly established that it was unconstitutional to shoot a fleeingdrivertoprotectthosewhomhis flightmightendanger. As in Plumhoff, plaintiff’s flight posed a grave public safety risk and Officer Richardt acted reasonably in using deadly force to end that risk. As the Supreme Court recognized, it was notclearlyestablishedthatitwasunconstitutionaltoshootafleeingdriver toprotectthosewhom his flight might endanger. Id. For these reasons, Officer Joseph Richardt is entitled to qualified

immunityandthisCourtshould grantjudgmentas amatteroflawinfavor ofhim. Respectfullysubmitted, By: /s/ LucyB.Bednarek LucyB.Bednarek EllenK.Emery eemery@ancelglink.com LucyB.Bednarek lbednarek@ancelglink.com ANCEL,GLINK,DIAMOND,BUSH,DICIANNI&KRAFTHEFER,P.C. Attorneys forDefendant 140SouthDearborn Street,Sixth Floor Chicago, Illinois 60603 (312)782-7606 CERTIFICATE OFSERVICE The undersigned, one of the attorneys of record herein, hereby certifies that on April 10, 2018, the foregoing Defendants’ Motion for Judgment as a Matter of Law was electronically filedwiththeClerkof theU.S.DistrictCourt usingtheCM/ECFSystem,andmailednotification ofsuchfilingtothefollowing: PaulHenryMillewich LawOfficesofStevenH.Mevorah &Associates 134NorthBloomingdaleRoad Bloomingdale, IL60108 PMillewich@mevorahlaw.com /s/LucyB.Bednarek LUCYB.BEDNAREK, ARDC #6269389 AttorneyforDefendants ANCEL, GLINK, DIAMOND,BUSH,DICIANNI &KRAFTHEFER,P.C. 140SouthDearborn Street,Sixth Floor Chicago, Illinois60603 Telephone: (312)782-7606 Facsimile: (312)782-0943 E-Mail: lbednarek@ancelglink.com 4825-8046-7807,V. 1