DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW
JEFFREY T. GILBERT, Magistrate Judge.
Defendants, by and through one of their attorneys, respectfully move for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a) on Plaintiff's excessive force claim against Sergeant Olson and Plaintiff's failure to intervene claims against Sergeant Olson and Officer Motyka and in support state as follows:
ARGUMENT
Federal Rule of Civil Procedure 50(a) provides that a party is entitled to judgment as a matter of law on a particular issue if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. Fed. R. Civ. P. 50(a). The evidence must be viewed in the light most favorable to the non-moving party and the Court must determine whether the evidence is sufficient to sustain a verdict in favor of the non-moving party. Hammond Grp., Ltd. v. Spalding & Evenflo Cos., Inc., 69 F.3d 845, 848 (7th Cir. 1995). Here, Defendants are entitled to judgment as a matter of law on Plaintiff's § 1983 claim for excessive force against Sergeant Olson on Plaintiff's § 1983 failure to intervene claims against Sergeant Olson and Officer Motyka.
I. No Reasonable Jury Could Find that Sergeant Olson Used Excessive Force.
The evidence in the record cannot support a verdict against Sergeant Olson for excessive force under the Fourth Amendment because his conduct did not effect a seizure of Mr. Gonzalez. Excessive force claims brought against police officers under § 1983 are analyzed according to the "Fourth Amendment standard of `objective reasonableness.'" Carr v. City of N. Chicago, 908 F.Supp.2d 926, 930 (N.D. Ill. 2012) (citing Graham v. Connor, 490 U.S. 386, 397 (1989). As such, Plaintiff must establish that Sergeant Olson firing his weapon at Pedro Gonzalez, III was an objectively unreasonable use of force by the officer. "Deadly force may be used if the officer has probable cause to believe that the armed suspect (1) `poses a threat of serious physical harm, either to the officer or to others,' or (2) `committed a crime involving the infliction or threatened infliction of serious physical harm' and is about to escape." Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir. 2002) (citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985)).
Determining whether a particular use of force is reasonable "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 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). As such, 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—about the amount of force that is necessary in a particular situation." Id. at 396-97.
When an officer fires at but does not hit a subject, no Fourth Amendment seizure occurs. "[S]ubmit[ting] to a police show of force" is "not subject to Fourth Amendment scrutiny." Colone v. Burge, No. 00 C 9008, 2002 WL 31628205, at *3 (N.D. Ill. Nov. 21, 2002) (citing Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992); Tom v. Voida, 963 F.2d 952, 956 (7th Cir. 1992) (finding that seizure did not occur until suspect was physically touched by the officer, even though officer was previously attempting to touch the suspect and was unsuccessful)); see Keys v. City of Harvey, No. 92 C 2177, 1995 WL 247989, at *4 (N.D. Ill. Apr. 6, 1995) ("pre-seizure conduct of the police . . . may be relevant to the question of the reasonableness of the force used to seize someone, but it cannot itself provide the basis of the Fourth Amendment violation.").
Here, Plaintiff has not established that Sgt. Olson—who admittedly fired three shots, none of which struck Pedro Gonzalez—effected a seizure of Mr. Gonzalez under the Fourth Amendment. Mr. Gonzalez was indisputably struck by two bullets fired by Officer Motyka in his left side/back area. Officer Motyka conceded at trial that his bullets struck and killed Mr. Gonzalez.
Q. All right. So — and when you fired the bullets that killed Pedro Gonzalez, you were sitting in the driver's seat of your car, right?
A. That's correct.
Tr. Transcript of Sept. 18, 2015, p. 27:17-20, attached as Ex. A.
The record is clear on this point. Officer Motyka admits he fired the bullets that struck and killed Mr. Gonzalez. See id at p. 23:2-4. By Officer Motyka's account, those bullets were fired in approximately one second. Id. at 117:2-5. Plaintiff's expert, Dr. Arden also offered unrebutted testimony that both bullets that struck Mr. Gonzalez appeared to be consistent with bullets fired in rapid succession and, in his opinion, were fired by Officer Motyka from the car. Arden Tr. Testimony, Sept. 18, 2015, pp. 182:2-14, 230:2-4, attached as Ex. B. Sergeant Olson also testified that he fired three times total but believed that he missed. See Sgt. Olson Tr. Testimony, Sept. 21, 2015, at p. 53:6-14, attached as Ex. C (admitting that Officer Motyka's bullets killed Mr. Gonzalez).
Similarly, there was no evidence adduced at trial to support a theory that Sergeant Olson caused Officer Motyka to shoot Mr. Gonzalez. Officer Motyka testified that he saw Mr. Gonzalez point a weapon at him which is why he fired.
Q. Why did you shoot Mr. Gonzalez?
A. `Cause he was aiming a weapon at me.
Motyka Tr. Testimony, Ex. A, p. 93:23-24.
Neither Officer Motyka, nor any other witness, testified that Officer Motyka chose to shoot Mr. Gonzalez based on Sergeant Olson's actions. Officer Motyka was clear that he fired at Mr. Gonzalez because he saw a weapon pointed directly at him. Id. There is simply no evidence to support the theory that Sergeant Olson caused Officer Motyka to fire. Accordingly, no reasonable jury could find that Sergeant Olson caused Officer Motyka to use excessive force.
Based on the record at trial, no reasonable jury could conclude that Sergant Olson's bullet(s) actually struck Mr. Gonzalez or that Sergeant Olson caused Officer Motyka to fire. Accordingly, the Court should grant Defendants judgement as a matter of law on Plaintiff's excessive force claim against Sergeant Olson.
II. No Reasonable Jury Could Find that Sergeant Olson or Officer Motyka Failed to Intervene In The Use of Excessive Force
Even viewing the facts in a light most favorable to Plaintiff, no reasonable jury could find that either Officer Motyka or Sergeant Olson failed to intervene in the alleged use of excessive force. "An officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had reason to know . . . that excessive force was being used . . . and the officer had a realistic opportunity to intervene to prevent the harm from occurring." Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (emphasis in original). Plaintiff must raise facts establishing all of the above elements for each individual officer before any such officer may be held liable. See Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d 1014, 1039 (7th Cir. 2003) ("Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional deprivation.") (citation omitted).
In order to prevail on his failure to intervene claim, Plaintiff must prove that each Defendant had a realistic opportunity to intervene to prevent the excessive force from occurring. Yang, 37 F.3d at 285. He also must prove that each officer was informed of the others' unreasonable conduct, such that he could have prevented it. Id.; Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008). No such facts were established at trial.
"Whether an officer had sufficient time to intervene or was capable of preventing the harm caused by the other officer is generally an issue for the trier of fact unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise." Abdullahi v. City of Madison, 423 F.3d 763, 774 (7th Cir. 2005) (citing Lanigan v. Vill. of E. Hazel Crest, Ill., 110 F.3d 467, 478 (7th Cir. 1997)). Here, the jury could not possibly conclude otherwise. See Pitzer v. City of E. Peoria, Ill., 708 F.Supp.2d 740, 750 (C.D. Ill. 2010) (finding no realistic opportunity for a defendant officer to intervene to prevent a single gunshot); Smith v. Boyle, No. 02 C 2788, 2004 WL 2203438, at *3-4 (N.D. Ill. Sept. 29, 2004) (finding no realistic opportunity for defendant officers to intervene to prevent use of excessive force where the alleged incidents of excessive force took place "within a couple of seconds" and the officers were several feet away).
There was no evidence presented by Plaintiff that either Officer Motyka or Sergeant Olson were positioned in a way to allow them to realistically intervene to prevent the other from firing at Mr. Gonzalez. And the evidence presented at trial does not support that Officer Motyka or Sergeant Olson knew or should have known that excessive force was being, or about to be used, by either Defendant.
Officer Motyka testified that he fired rapidly, and Dr. Arden confirmed that the two bullets that struck Mr. Gonzalez appear to have been fired in quick succession. Thus, at the time that Officer Motyka fired, there is no evidence that Sergeant Olson, who was on the sidewalk chasing Mr. Gonzalez, could have realistically stopped Officer Motyka from firing from the car. Likewise, there is no evidence to suggest that Officer Motyka, who was in the squad car, was in a position to stop Officer Olson from firing from the sidewalk. Neither officer was near the other at the time the shots were fired.
Accordingly, Defendants are entitled to judgment as a matter of law.
CONCLUSION
WHEREFORE, for the foregoing reasons, Defendants Eric Olson and Jason Motyka respectfully request that this court grant their motion for judgment as a matter of law and enter judgment in their favor on Plaintiff's excessive force claim against Sergeant Olson and failure to intervene claim against both defendants.
Exhibit A
Motyka — direct by Ainsworth
pointing a gun at Defendant Olson as you contend.
So — well, first, you're not disputing that it was your bullets that killed Pedro Gonzalez, right?
A. I now know that, yes, that's true.
Q. All right. So the bullets that you fired are the ones that went through Pedro's chest and killed him?
A. Sir, I now believe that the bullets I did fire did, in fact, kill Pedro Gonzalez.
Q. All right. After you shot Pedro Gonzalez III, you still had your gun out, right?
A. Yes.
Q. And so this is at the point in time when Pedro Gonzalez has been shot and is falling to the ground, and you still have your gun out, and it's still pointed at Pedro, right?
A. I remember having my gun out. I don't specifically — as he was falling, I don't specifically recall my gun being pointed at him at that time.
Q. There's no reason for your gun not to be pointed at him, right?
A. Again, sir, I didn't — I didn't say that. I — my —
Q. I'm just trying —
A. My gun was out, yes. I do not recall pointing my gun at Mr. Gonzalez as he was falling.
Q. All right. Well, you had your gun out, and you fired rapidly three times, right?
Motyka — direct by Ainsworth
specifically recall, you know, anything specific. Just that it happened very quickly.
Q. But you were able to see him point the gun, right?
A. Yes, I was.
Q. You're left-handed, right?
A. That's correct, sir.
Q. And when you fire your gun, you use your left hand to do so?
A. A handgun, yes. There's — I mean, could I clarify that question? I mean, there's times — are you referring to drawing a weapon or actually firing? Because, you know, there's times when I fire a weapon where I have both hands on the gun.
Q. Let's do it for in this case. When you shot and killed Pedro Gonzalez, were you holding your gun in your left hand?
A. Yes.
Q. All right. So — and when you fired the bullets that killed Pedro Gonzalez, you were sitting in the driver's seat of your car, right?
A. That's correct.
Q. All right. Let's —MR.
AINSWORTH: I'm going to seek to admit Defense Exhibit 5-575.
THE COURT: Okay. Any objection?
MR. HURD: No objection.
Motyka — cross by Hurd
(Jury out. Proceedings heard in open court:)
THE COURT: They're all back. Is everybody here?
MR. HURD: The defense team appears to be here.
THE COURT: Okay. What about you?
MR. AINSWORTH: We can begin.
THE COURT: Okay.
MR. HURD: Do you want Motyka to take the stand?
THE COURT: Sure. Yeah, why don't you come back up here.
(Pause. Jury in.)
THE COURT: Okay. Good afternoon.
I did get the message, we got the message that you guys think an hour is fine for lunch. So, actually, we got — and I asked Brenda to run back there and see if we could do that today, but some of you already 1 eft, so — but we got the message. We're good with that. Okay? Please have a seat.
Mr. Hurd, whenever you're ready.
MR. HURD: Thank you, Your Honor.
JASON MOTYKA, DEFENDANT HEREIN, PREVIOUSLY SWORN CROSS-EXAMINATION
BY MR. HURD:
Q. Jason, how are you this afternoon?
A. Okay, sir.
Q. Why did you shoot Mr. Gonzalez?
A. `Cause he was aiming a weapon at me.
Motyka — cross by Hurd
left shoulder hit a fence.
Q. You pulled the trigger how many times?
A. Three.
Q. How long did it take to fire those three shots?
A. Quickly. Approximately a second.
Q. Why only three shots?
A. At that point, I believed the threat was eliminated.
Q. Were you seated in the driver's seat of your car when you shot at Mr. Gonzalez?
A. Yes.
Q. Did you ever leave the driver's seat before you shot?
A. No. No.
Q. And you fired out of the passenger window, is that correct? A. Correct.
Q. And you aimed your weapon?
A. Yes.
Q. Now, you didn't see Pedro Gonzalez turn from this position to this position (demonstrating), but you saw his left shoulder on the fence, correct?
MR. AINSWORTH: Object to leading, Judge.
THE COURT: It kind of is leading. I'll sustain the objection.
MR. HURD: Okay.
THE COURT: Do you want to ask it a different way?
BY MR. HURD:
Exhibit B
Arden — direct by Art
in the left the far left side of his back.
Q. Okay. And these are the gunshot wounds you're talking about right here (indicating)?
A. Yes, sir. You've now circled them.
Q. Okay. How far apart are those?
A. They're just two inches apart.
Q. What does it tell you that they're just two inches apart?
A. Well, they're closely-spaced gunshot wounds. And one of the potential explanations for having closely-spaced gunshot wounds is when you've had the gun fired in rapid succession. So that if more than one of the bullets strikes the body, if the gun is fired multiple times rapidly, they tend to go to about the same place. So you get them closely located or spaced like this.
Q. Okay. Did you use the photographs you reviewed and the measurement from the Cook County Medical Examiner to help us make this model —
A. I did.
Q. — that's here in court today?
A. Yes, sir.
MR. ART: Your Honor, do you mind if he steps down?
THE COURT: Sure. No, I don't.
THE WITNESS: Thank you, Your Honor.
BY MR. ART:
Q. We're going to try to remain close to this microphone here.
Arden — direct by Art
next to the gangway. Does that also look accurate?
A. Yes, sir.
Q. So in your opinion, is it fair to say there was essentially a straight line from west to east from Motyka, Officer Motyka to where Pedro fell?
A. Yes, sir.
Q. Is there any additional evidence that you reviewed that supports that conclude?
A. There is.
Q. And what's that?
A. Two bullets were found — two fired bullets were found —MR.
HURD: Objection, Your Honor. That's not a disclosed opinion.
MR. ART: Your Honor, these are the photographs that he reviewed. We're about to review the photographs. I can review — MR.
HURD: Not a disclosed opinion.
THE COURT: Was it in his — was it in his opinion? Was it in his report?
MR. ART: I mean, I think — I think that in both his report and in his deposition, he discusses the trajectory of these bullets and where they end up.
MR. HURD: No, he does not.
THE COURT: I haven't seen any of it, but if it wasn't part of his opinion —
Arden — cross by Hurd
A. Yes, sir.
Q. Okay. We can agree that Motyka's bullets hit Mr. Gonzalez from Motyka's car?
A. Yes, sir.
Q. Okay. Can we also agree you cannot tell which bullet struck Mr. Gonzalez first?
A. Correct.
Q. It could have been the one across the back?
A. Yes.
Q. It could have been the one that came out the front?
A. Yes.
Q. Okay. Thank you.
A. Yes, sir.
Q. Now, you were the chief medical examiner in Washington, D.C., correct?
A. I was.
Q. Okay. You resigned from that position?
A. Yes, I did.
Q. And anything that led to that resignation?
A. I resigned under political pressure. Basically, I had an agency that had been in disastrous condition for 20 years and I hadn't fixed it all in five, and I got political pressure and decided to resign.
Q. Okay. And since you resigned, you have a lucrative practice in Arden Forensics, correct?
Exhibit C
Olson — direct by Ainsworth
justified in shooting Pedro Gonzalez on June 15th, 2011, is if he actually had a gun and was pointing it at either yourself or one of your partners that day?
A. Yeah. Myself, my partners, or any other persons would be the complete answer, yes.
Q. Now I want to talk to you about the scene after Pedro Gonzalez has been shot and killed by your partner. Okay?
A. Yes, sir.
Q. All right. You don't dispute that it was Officer Motyka who killed Pedro Gonzalez, is that right?
A. No, I do not.
Q. As you sit here today, you're not disputing that, right?
A. As I sit here today listening and all week listening to the trial, I do not dispute that.
Q. You heard Dr. Arden's testimony, and you don't dispute what Dr. Arden had to say, right?
A. As a layperson, no, that wouldn't be my job. He would be the doctor.
Q. All right. So I want to take you to particularly the time after defendant Motyka had killed Pedro Gonzalez. You and Officer Motyka and Officer Tunzi had an opportunity to confer after Pedro Gonzalez was killed, right?
A. That's not correct.
Q. All right, sir. I'm going to show you what we've previously marked as Plaintiff's Exhibit 75.
