Honorable Edmond E. Chang, United States District Judge
Hyung Seok Koh and Eunsook Koh bring this civil rights lawsuit against Northbrook police officers Mark Graf, John Ustich, Charles Wernick, Roger Eisen, Matthew Johnson, Scott Dunham, Bryan Meents, and Keith Celia; Wheeling police officer Sung Phil Kim; and the Villages of Northbrook and Wheeling.
For purposes of the summary judgment motions, the facts are viewed in the light most favorable to the Kohs (because they are the non-movants), and all reasonable inferences are drawn in their favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
At around 3:45 a.m. on April 16, 2009, Eunsook Koh found her 22-year-old son, Paul Koh, lying in a pool of blood in the entryway of their family home. R. 280, NDSOF ¶ 1; R. 315, PSOF ¶ 2; R. 288-2, Exh. 82, Mar. 22, 2010 Pretrial Hr'g Tr. 42:9-43:14 (sealed).
Within minutes, Northbrook police officers Eisen, Johnson, Meents, and Celia arrived at the Kohs' house. NDSOF ¶ 3; PSOF ¶ 4; Exh. 6, NPD Call Detail Report (sealed). The officers found Mr. Koh with a cordless phone in his hand near the front door of the house and Mrs. Koh crouched over Paul's body. NDSOF ¶ 4; R. 280-5, Exh. 4, Celia Dep. Tr. 35:6-37:10. Paul had suffered major stab wounds to his throat and chest. NDSOF ¶¶ 5, 29; Exh. 4, Celia Dep. Tr. 36:23-37:7. Mr. Koh was frantic and screaming for someone to help his son; Mrs. Koh was crying. PSOF ¶ 4; Exh. 4, Celia Dep. Tr. 36:5-38:7. Celia and Meents told Mrs. Koh to come out on to the lawn. Exh. 4, Celia Dep. Tr. 42:21-43:12. Meanwhile, Mr. Koh went out to try to start the family car, but Meents followed him and corralled him back to the front yard. R. 280-6, Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 12:6-13:17. The Kohs were pushed to the ground on their lawn, and sat there for ten to fifteen minutes while Johnson and Meents watched over them. NDSOF ¶¶ 8, 11; PSOF ¶ 5; Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 15:19-21; NDSOF Exh. 7, Meents Dep. Tr. 71:1-19. At various times, the Kohs asked to go into the house to see their son, to gather Mr. Koh's medications, to get Mr. Koh's cell phone, and to go to the hospital. NDSOF ¶¶ 8, 12-13, 15; R. 283-6, Exh. 17, Hyung Seok Koh Dep. Tr. 354:4-355:8. These requests were denied. NDSOF ¶¶ 12-13, 15; Exh. 11, May 11, 2010 Pretrial Hr'g Tr. 76:8-20; Exh. 5, Meents Dep. Tr. 132:2-9.
At the direction of Commander Eisen, Officers Johnson and Meents took the Kohs to Johnson's squad car. R. 380-4, Exh. 3, Eisen Dep. Tr. 56:6-9; R. 282, Exh. 9, Johnson Dep. 67:22-68:7; Exh. 5, Meents Dep. Tr. 89:8-16. The Kohs maintain — and the Northbrook Defendants do not deny (at the summary judgment stage) — that the officers "pushed" and "sort of shoved" them into the squad car. R. 311, Pls.' Resp. NDSOF ¶ 16; Exh. 17, Hyung Seok Koh Dep. Tr. 363:16-364:17 ("[T]hey held our arm or twisted our arm, and then they sort of shoved us into the squad car."); R. 283, Exh. 12, Mar. 22, 2010
When the Kohs arrived at the police station, Mr. Koh asked to sit in the station's chapel, but his requests were denied. PSOF ¶ 7; NDSOF ¶ 37; R. 287-21, Exh. 79, Nov. 13, 2009 Pretrial Hr'g Tr. 59:3-9 (sealed). Instead, Officers Johnson and Ochab escorted the Kohs to a conference room in the police station. NDSOF ¶¶ 34-35; Exh. 9, Johnson Dep. Tr. 85:20-87:20. On the way there, one of the officers asked Mrs. Koh to wash her bloodstained hands in the women's restroom. PSOF ¶ 8; NDSOF ¶ 34; Exh. 9, Johnson Dep. Tr. 85:20-86:23. The officers watched Mrs. Koh as she did so, and investigators inspected the bathroom after she finished. PSOF ¶ 8; Exh. 9, Johnson Dep. Tr. 87:3-11; R. 284-4, Exh. 28, Wasowicz Dep. Tr. 66:8-24.
The Kohs were taken to the conference room and were given blankets and beverages. NDSOF ¶ 44; Exh. 9, Johnson Dep. Tr. 89:1-19. Johnson or other officers watched over the Kohs throughout their time in the conference room.
As the Kohs waited at the police station, the investigation into Paul's death progressed. Commander Eisen directed dispatchers at the station to locate a Korean-speaking police officer to help facilitate communication with the Kohs, who had difficulty communicating in English.
At around 5:00 a.m., Northbrook's Chief of Police, Defendant Wernick, arrived at the Kohs' house. NDSOF ¶ 26; R. 280-7, Exh. 6, NPD Call Detail Report (sealed). Chief Wernick notified the North Regional Major Crimes Task Force (NORTAF), a regional team designed to assist with major crime investigations, about Paul's death. NDSOF ¶¶ 26-27; R. 284-1, Exh. 25, Wernick Dep. Tr. 58:15-19. In response to Chief Wernick's notice, NORTAF investigators arrived on scene. NDSOF ¶¶ 28-32; R. 284-3, Exh. 27, McEnerney Dep. Tr. 81:4-82:10; R. 284-4, Exh. 28, Wasowicz Dep. Tr. 26:22-28:7. Later that morning, a group of NORTAF members and other law enforcement officers conducted a briefing on the Koh case at the Northbrook police station. See NDSOF Exh. 9, Johnson Dep. Tr. 153:12-16; NDSOF Exh. 28, Wasowicz Dep. Tr. 31:1-32:12. What happened at this meeting is not entirely clear — most of the attendees cannot remember exactly who was there or what information was shared — but it appears that NORTAF forensic supervisor Wasowicz presented his preliminary impressions of the scene, and that Officer Johnson shared information that he learned from the Kohs. Exh. 9, Johnson Dep. Tr. 160:10-161:10; Exh. 28, Wasowicz Dep. Tr. 32:13-34:8; R. 284-5, Exh. 29, Wasowicz Aff. ¶ 14; Exh. 27, McEnerney Dep. Tr. 116:13-117:11. The Kohs had informed Johnson that Paul Koh used marijuana, and that Paul was depressed and the Kohs believed he might have committed suicide. Exh. 9, Johnson Dep. Tr. 160:2-161:9; NDSOF ¶¶ 23, 41.
At around 7:30 a.m., Mr. Koh was interviewed by Northbrook detectives Graf and Ustich — the first of two police interrogations he would undergo that morning. NDSOF ¶ 52; R. 285-1, Exh. 42, Video of Hyung Seok Koh Interview 1. Officer Kim was present to assist with Korean-language interpretation. NDSOF ¶ 52; Exh. 42, Video of Hyung Seok Koh Interview 1. This first interview lasted about 55 minutes. NDSOF ¶ 52; Exh. 42, Video of Hyung Seok Koh Interview 1. Before the start of the interview, Mr. Koh made another request for his medications (which he used to control his diabetes, high blood pressure, and ammonia level disorder). PSOF ¶ 20; R. 289-1, Exh. 85, Mar. 16, 2010 Pretrial Hr'g Tr. 14:3-15:12.
Before questioning Koh on the events of the night before, Graf administered Miranda warnings in English. NDSOF ¶ 54; R. 285-3, Exh. 44, Hyung Seok Koh Interview Tr. 1-3.
The first interview was conducted mostly in English, with little intervention from Kim. See generally Exh. 42, Video of Hyung Seok Koh Interview 1. Although Mr. Koh was able to answer some questions and communicate at a basic level in English, some of his answers were confusing or unresponsive to Graf's questions. See, e.g., Exh. 44, Hyung Seok Koh Interview Tr. 3-4, 36. Graf nevertheless continued questioning Mr. Koh in English, and raised the possibility that Mr. Koh might have harmed Paul. See, e.g., id. at 36-37. Throughout this first interview, Mr. Koh repeatedly denied any involvement in Paul's death. PSOF ¶ 109; NDSOF ¶ 59; Exh. 44, Hyung Seok Koh Interview Tr. 36-37; 39-42; 45. Graf and Mr. Koh also discussed Paul's drug use and depression. NDSOF ¶ 63; Exh. 44, Hyung Seok Koh Interview Tr. 52-58.
Two NORTAF detectives (not defendants in this case) interviewed Mrs. Koh as soon as Mr. Koh's first interview ended. NDSOF ¶ 73; R. 308-14, Exh. 121, Eunsook Koh Interview Tr. Officer Kim also provided interpretation assistance during Mrs. Koh's interview, which lasted around 55 minutes. NDSOF ¶ 73; R. 286-13, Exh. 54, Video of Eunsook Koh Interview. Mrs. Koh's version of events mostly corroborated Mr. Koh's. PSOF ¶ 111; Wheeling Defs.' Resp. PSOF ¶ 111; NDSOF ¶¶ 74-76; see also Exh. 54, Video of Eunsook Koh Interview; Tr.
Before resuming their interrogation of Mr. Koh, Graf and Ustich met with several of their superiors to discuss how to proceed. PSOF ¶ 26; R. 284-14, Exh. 36, Graf Dep. Tr. 91:4-93:24; Exh. 28, Wasowicz Dep. Tr. 30:13-32:12. Present at these meetings
At around 11:30 a.m., Detectives Graf and Ustich, joined again by Officer Kim, began questioning Mr. Koh a second time. NDSOF ¶ 78; Video of Hyung Seok Koh Interview 2. Before reinitiating questioning, Detective Graf offered Mr. Koh food, coffee, juice, and water. NDSOF ¶ 80; Exh. 44, Hyung Seok Koh Interview Tr. 58. Although Mr. Koh had not recently eaten, slept, or taken his medications, PSOF ¶ 29; Exh. 17, Hyung Seok Koh Dep. Tr. 354:22-355:8, all he said in response was, "Yeah, what I need is I'll let you know," Exh. 44, Hyung Seok Koh Interview Tr. 59; see also NDSOF ¶ 80.
As demonstrated on the video recording, the questioning in the second interview was more aggressive. Graf, implementing a particular law-enforcement interrogation technique, pressed Koh hard about the events of the night before, confronting him with inconsistencies (real and imagined) in his story. See NDSOF Exh. 36, Graf Dep. Tr. 105:2-110:15; see also NDSOF ¶¶ 50-51. At first, Mr. Koh denied any involvement in Paul's death, sticking to his story that he had gone to bed and had slept until he was awoken by Mrs. Koh at around 3:45 a.m. See, e.g., Exh. 44, Hyung Seok Koh Interview Tr. at 68, 101-02. In response, Graf intensified his questioning, eventually moving to sit in a chair next to Mr. Koh (up until this point, Detective Graf had been sitting across the table from Mr. Koh). NDSOF ¶ 85; R. 286-14, Exh. 55, Video of Hyung Seok Koh Interview 2 00:45:11-00:45:24; Exh. 44, Hyung Seok Koh Interview Tr. 103. Detective Graf also began to raise his voice, yell at Mr. Koh, and touch Mr. Koh on his arms and legs. PSOF ¶ 33; Northbrook Defs.' Resp. PSOF ¶ 33; NDSOF ¶ 92; Pls.' Resp. NDSOF ¶ 92; Exh. 55, Video of Hyung Seok Koh Interview 2 00:55:20-01:09:53.
Graf began to present details of his theory of the crime, stating that he knew that
Eventually, Mr. Koh agreed (that is, the details of his story were suggested by Graf and Mr. Koh assented) that he stayed up until 1:00 a.m. waiting for Paul to come home; that Mr. Koh was mad because Paul had been out late smoking marijuana with friends; and that the two got into an argument when Paul finally came home, which culminated in Mr. Koh stabbing his son in the chest and slitting his son's throat with a knife in self-defense. Exh. 44, Hyung Seok Koh Interview Tr. 111-144; see also NDSOF ¶¶ 89-90; Pls.' Resp. NDSOF ¶¶ 89-90. As with most of the details in that version, it was Detective Graf who presented Mr. Koh with the self-defense storyline. See Exh. 44, Hyung Seok Koh Interview Tr. 135-136; see also PSOF ¶ 119; Wheeling Defs.' Resp. PSOF ¶ 119; NDSOF ¶ 94.
About three minutes before what would be the end of the interview, Officer Dunham knocked on the door. PSOF ¶ 42; Exh. 57, Video of Hyung Seok Koh Interview 3 at 00:18:19. Graf stepped outside the interview room and told Dunham that Mr. Koh was in the middle of confessing to his son's murder. PSOF ¶ 42; R. 284, Exh. 24, Dunham Dep. Tr. 65:13-66:10. Dunham told Graf that Mr. Koh's attorney, Michael Shim, was at the police station
As soon as the interview was over, Detective Graf met with Chief Wernick and Officers Dunham, Ustich, and McEnerney. PSOF ¶ 44. (Officer Kim was not present at this meeting, nor at the meetings that took place in between Mr. Koh's interviews earlier that morning. WDSOF ¶ 18.
The next morning, Assistant State's Attorney Bob Heilengoetter approved first-degree felony murder charges against Mr. Koh. NDSOF ¶ 109; R. 287-9, Exh. 67, Felony Compl. In reaching that decision, ASA Heilengoetter relied on information contained in a "felony review folder" compiled by ASA Albanese. PSOF ¶¶ 59, 62; Northbrook Defs.' Resp. PSOF ¶¶ 59, 62; Exh. 157, Felony Review Folder. The folder included autopsy results, Albanese's notes about Mr. Koh's video-recorded statements, and ASA Heilengoetter's notes from a phone conversation he had with Detective Graf earlier that day. Exh. 157, Felony Review Folder; see also PSOF ¶¶ 59-60; Northbrook Defs.' Resp. PSOF ¶¶ 59-60. ASA Heilgoetter did not view any portion of the video himself. PSOF ¶ 60; R. 287-10, Exh. 68, Heilengoetter Dep. Tr. 78:21-79:6. The parties dispute whether ASA Heilengoetter relied on any other evidence or on anyone else's input when deciding whether to bring charges, compare PSOF ¶¶ 59, 65; Pls.' Resp. NDSOF ¶ 110, with NDSOF ¶ 110; Northbrook Defs.' Resp. PSOF ¶¶ 59, 65, as well as the extent to which ASA Heilengoetter knew about Paul's mental health issues, compare PSOF ¶ 66, with Northbrook Defs.' Resp. PSOF ¶ 66. Detective Ustich
On May 13, 2009, the state obtained a grand jury indictment against Mr. Koh for first-degree murder. PSOF ¶ 73; see also R. 308-63, Exh. 170, Grand Jury Tr. Detective Graf testified before the grand jury. PSOF ¶ 73; see also Exh. 170, Grand Jury Tr. Charges were never brought against Mrs. Koh, and she was released on April 17, 2009 after spending the night in a jail cell. NDSOF ¶ 111; R. 287-11, Exh. 69, Eunsook Koh Prisoner Checklist. Mr. Koh, on the other hand, ultimately spent almost four years in Cook County Jail awaiting trial. R. 316, Pls.' Resp. Br. at 22; see PSOF ¶¶ 73-74. Finally, after a three-week trial in December 2012 — during which the defense (that is, Mr. Koh) argued that Paul took his own life — a jury acquitted Mr. Koh of all charges. PSOF ¶ 74; NDSOF ¶ 122.
Summary judgment must be granted "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). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In evaluating summary judgment motions, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The Court may not weigh conflicting evidence or make credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must consider only evidence that can "be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). The party seeking summary judgment has the initial burden of showing that there is no genuine dispute and that they are entitled to judgment as a matter of law. Carmichael v. Vill. of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the adverse party must then "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505.
Both sets of Defendants have moved for summary judgment on all the claims in the Kohs' Second Amended Complaint. In Count One of that complaint, the Kohs allege that the Defendants arrested them without probable cause (or, in Officer Kim's case, extended Mr. Koh's unlawful detention) in violation of the Fourth Amendment. R. 133, Second Am. Compl. ¶¶ 48-52. In Count Two, the Kohs allege that the Defendants violated Mr. Koh's right against self-incrimination and his right to due process under the Fifth and Fourteenth Amendments. Id. ¶¶ 53-56. Count Three alleges that the Defendants failed to intervene to prevent these constitutional violations, id. ¶¶ 57-60, Count Four targets the Village of Northbrook, alleging that the Northbrook Defendants were acting pursuant to an unconstitutional municipal policy and practice, id. ¶¶ 61-65, and Count Five alleges that the Defendants conspired to violate the Kohs' constitutional rights, id. ¶¶ 66-70. Finally, in the wake of the Supreme Court's decision in Manuel v. City of Joliet, ___ U.S. ___, 137 S.Ct. 911, 197 L.Ed.2d 312 (2017), the Kohs contend that Mr. Koh's pretrial detention violated the Fourth Amendment. R. 357, Pls.' Supp. Br. at 1-3.
The Kohs also bring a few state-law claims. Count Six is a malicious prosecution
Before digging into the Kohs' substantive claims, their derivative claims for conspiracy and failure to intervene merit a brief discussion. The Northbrook Defendants assert that the Kohs have not established sufficient facts to demonstrate that individual defendants should be liable for conspiracy or failure to intervene. Northbrook Defs.' Br. at 37-38. In its prior opinion on the Defendants' motion to dismiss, the Court noted the complaint's
There is a problem with this argument: the Northbrook Defendants do not explain which Defendants are entitled to summary judgment, on what claims, or (if it matters) at what point in time during the course of events particular Defendants ceased being even potentially liable. This is a fatal oversight. On summary judgment, the moving party carries the burden of demonstrating that there are no genuine issues of material fact and that it is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(a). In this case, Northbrook's motion is so vague on the group-allegations argument that the Court is left to guess which Defendants Northbrook believes are entitled to summary judgment on which theories of liability. See R. 279, Northbrook Defs.' Br. at 37-38; R. 329, Northbrook Defs.' Reply Br. at 36-37.
To be sure, the Kohs do have the ultimate burden of proving conspiracy and failure to intervene, and it is very unlikely that they will be able to do so for all Defendants when it comes to the trial. It seems clear, for example, that liability for the on-scene arresting officers — Meents, Johnson, Eisen, and Celia — must cut off at some point in time after the Kohs arrived at the police station and the interrogations began. Unsupported allegations of a conspiracy of which there is no evidence will not be enough at trial (and indeed would not have been enough to withstand a properly detailed motion for summary judgment). Unfortunately, Northbrook has not made these arguments in enough detail to give the Kohs or the Court fair notice of the grounds for summary judgment. Northbrook's motion for summary judgment on the conspiracy and failure to intervene claims is denied.
Moving on to the substantive claims, the Kohs allege the Defendants arrested them without probable cause (or, in Officer Kim's case, extended Mr. Koh's unlawful detention) in violation of the Fourth Amendment.
An arrest occurs when, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Tyler, 512 F.3d 405, 409-10 (7th Cir. 2008) (quotations and citations omitted). This is an objective standard: the officer's and the suspect's subjective beliefs are not part of the legal analysis. Carlson v. Bukovic, 621 F.3d 610, 618-19 & n.15 (7th Cir. 2010). Relevant circumstances include the location of the arrest, the officers' statements and conduct, use of threats or threatening conduct, and whether the suspect was removed to another location. United States v. Scheets, 188 F.3d 829, 836-37 (7th Cir. 1999); see also Fox v. Hayes, 600 F.3d 819, 833 (7th Cir. 2010); Tyler, 512 F.3d at 410. The "characteristics" of the suspect, including whether the suspect "ha[s] problems understanding the English language," are also relevant to determining whether an arrest occurred. United States v. Espinosa-Alvarez, 839 F.2d 1201, 1205 (7th Cir. 1987); see also United States v. Schumacker, 577 F.Supp. 590, 595 (N.D. Ill. 1983). This is because individuals who have difficulty understanding English might feel "a greater compulsion to comply with the request of the
From the very beginning of their encounter with the Kohs, the Northbrook police officers acted in a way that would lead reasonable persons to think that they were not free to leave. The officers' first action upon arriving at the scene was to yell at Mrs. Koh to leave the house and sit down on the grass outside. NDSOF ¶ 8; Exh. 12, Mar. 22, 2010 Pretrial Hr'g. Tr. 51:23-52:2. Two Northbrook officers then grabbed Mrs. Koh by her arm and shoulder and forced her down onto the grass. NDSOF ¶ 8; Exh. 12, Mar. 22, 2010 Pretrial Hr'g. Tr. 52:15-22, 53:5-8. When Mr. Koh looked like he might be trying to leave the scene — he went to the driveway to try to start his car to take Paul to the hospital — Officer Meents told Mr. Koh that he had to go back to the front lawn. Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 12:6-13:17. Meents then escorted Mr. Koh away from the car and back to the front lawn, despite Mr. Koh's protests that he wanted to go to the hospital. Id. at 13:11-17; R. 283-7, Exh. 18, Jan. 5, 2010 Pretrial Hr'g Tr. 21:15-22:7. The officers pushed Mr. Koh down onto the grass by his shoulders, and told him not to move. NDSOF ¶ 11; Exh. 10, Nov. 13, 2009 Pretrial Hr'g Tr. 35:11-16, 38:9-15; Exh. 11, May 11, 2010 Pretrial Hr'g Tr. 68:14-21. Officers also screamed at Mr. Koh to "shut up" and "be quiet." Exh. 18, Jan. 5, 2010 Pretrial Hr'g Tr. 23:22-24:1-3. Once the Kohs were on the ground on the front lawn, Meents and Johnson stood over them in them for as long as fifteen minutes, remaining in "close proximity" to the Kohs the entire time. NDSOF Exh. 5, July 15, 2010 Pretrial Hr'g Tr. 15:19-21; R. 280-8, Exh. 7, Meents Dep. 71:1-19. During this time, the officers denied the Kohs' requests to go into the house for medications, to retrieve their cell phone, and to see their son.
Even if the Kohs were not arrested on the lawn, a reasonable jury could find that they were under arrest by the time they were taken to the police station in Johnson's squad car. Where "the police, without probable cause ... forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station ... for investigative purposes," courts will find a Fourth Amendment violation. Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); see also Sornberger v. City of Knoxville, Illinois, 434 F.3d 1006, 1018 (7th Cir. 2006) (holding that a reasonable jury could find that the plaintiff was under arrest when an officer told her that she "needed" to accompany him to the station, despite the lack of any overt threat of force). In this case, the shocked and grieving Kohs — who, according to their testimony, had already been yelled at, shoved, and loomed over by multiple uniformed police officers — were "escorted" to
What's more, a reasonable jury could find that the Kohs continued to be under arrest throughout their time at the police station. If anything, the Kohs' inability to leave was reinforced during their time in the police station conference room. According to Mrs. Koh, the door of the conference room where the Kohs were held was kept closed while they were inside. Exh. 12, Mar. 22, 2010 Pretrial Hr'g Tr. 102:16-23. Johnson or other officers watched over the Kohs the entire time. NDSOF ¶ 44; Exh. 9, Johnson Dep. Tr. 220:2-13. The officers also denied the Kohs' requests to make phone calls — indeed, Deputy Chief Ross explicitly instructed Johnson not to allow the Kohs to make calls until a police translator could listen in. PSOF ¶ 11, Exh. 134, Transcript of NPD Audio Recordings at 11-12; Exh. 103, Ross Dep. Tr. 82:17-84:6 (Ross ordered Johnson to wait for a translator "[s]o the officers would be able to know what was said."). The Kohs' inability make calls effectively left them stranded at the police station. The Kohs were brought to the station in Johnson's police vehicle; when they arrived it was around 4:00 a.m. on a cold April morning.
All of these facts also prevent the Court from finding that the arresting officers are entitled to qualified immunity as a matter of law. To avoid judgment on qualified immunity grounds, the Fourth Amendment right that the Defendants allegedly violated must have been "clearly established" as of the time of the alleged arrest. Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2011). The "clearly established" inquiry entails examining the right "in a particularized sense, rather than at a high level of generality." Alicea v. Thomas, 815 F.3d 283,
A reasonable officer would have known that pushing on the Kohs' shoulders and directing them to sit quietly on the ground outside of their house before taking them to a police car and driving them to a police station constituted an arrest under the Fourth Amendment. See Hayes, 470 U.S. at 815-16, 105 S.Ct. 1643; Sornberger, 434 F.3d at 1017-18. Indeed, the officers' actions read like a checklist of the factors that the courts have set out for evaluating whether a suspect is under arrest. In United States v. Scheets, for example, the Seventh Circuit noted that factors to be considered in the arrest analysis include:
Scheets, 188 F.3d at 836-37. Running through the list, the Northbrook officers ordered the Kohs to leave their home; never suggested that the Kohs were free to leave; ignored the Kohs' requests to go to the hospital; removed the Kohs from their home to the police station; pushed and shoved the Kohs; yelled at Mr. Koh to "shut up"; and kept the Kohs under police supervision at the station instead of releasing them. On these facts, a reasonable officer would have known that the Kohs were under arrest even on their front lawn (by that time, the officers had verbally and physically intimidated the Kohs, restricted their freedom of movement using physical force, and denied their requests to move). And a reasonable officer certainly would have known that the Kohs were under arrest by the time they were taken to the police station and held there. So qualified immunity cannot shield the Defendants on this element of the false arrest analysis.
The Fourth Amendment inquiry does not end with the conclusion that the Kohs were arrested. The Kohs' false arrest claim fails if the arresting officers had probable cause to detain them. Police officers have probable cause to arrest someone if "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The "totality of the circumstances" must establish a reasonable belief that criminal activity occurred. Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir. 2014). Whether or not probable cause exists then "is often a matter of degree, varying with both the need for prompt action and the quality of information available." Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993). Generally, the question of probable cause is a question for the jury. See id. (probable cause "is a proper issue for the jury if there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them").
Even where officers make an arrest without probable cause, qualified immunity may kick in to defeat a false-arrest claim. The doctrine of qualified immunity will protect the Defendants if they decided, "in an objectively reasonable fashion," that
Notably, the Defendants do not even try to argue that they had probable cause — or even arguable probable cause — to arrest the Kohs at their home. See Northbrook Defs.' Br. at 5-11. In fact, the Northbrook Defendants explicitly concede that there was no probable cause to arrest Mrs. Koh until, at the earliest, the end of Mr. Koh's second interview. Id. at 15. So, the question is when (if ever) in the course of the ongoing investigation the officers developed sufficient information to justify the continued detention of Mr. and Mrs. Koh.
For Mr. Koh, the NORTAF/NPD debriefing sessions held between Mr. Koh's two interviews mark a turning point in the probable cause analysis. In the time between Mr. Koh's first and second interviews, Officers Graf and Ustich met with NORTAF and NPD supervisors. See PSOF ¶ 26; Exh. 36, Graf Dep. Tr. 91:15-93:5. During these meetings, Graf and Ustich shared their impressions of the first interview. Exh. 36, Graf Dep. Tr. 93:21-94:11; Exh. 40, Ustich Dep. Tr. 85:15-86:15. Ustich noted that Mr. Koh did not vehemently deny involvement in Paul's death, and that the manner of his denial seemed oddly casual. Ustich also thought that Mr. Koh's answers were evasive or not forthcoming. Exh. 40, Ustich Dep. Tr. 85:21-86:4; 95:1-5.
The officers also discussed physical evidence from the house, which arguably suggested that Paul's death was a homicide. First, Graf and Ustich learned that investigators had found blood in Mr. and Mrs. Koh's master bathroom. Exh. 40, Ustich Dep. Tr. 95:13-14; Exh. 36, Graf Dep. Tr. 99:19-100:16. To Graf, this suggested that the Kohs had cleaned up the crime scene. Exh. 36, Graf Dep. Tr. 100:10-16. Second, there was a small metal cross and a broken necklace chain covered in blood and lying on the floor. See Exh. 40, Ustich Dep. Tr. 95:19-20; see also NDSOF ¶ 30; Exh. 28, Wasowicz Dep. Tr. 34:14-36:9; Exh. 29, Wasowicz Aff. ¶ 14; Exh. 29A, Wasowicz Aff. Exh. A at NB 369.
There also was some motive evidence that Graf and Ustich learned about during the debriefing sessions. Specifically, Paul and his father had an unusually confrontational relationship. NDSOF ¶ 68; Exh. 46, May 16, 2001 Pretrial Tr. 39:24-41:15; R. 339, Wasowicz Field Notes, NB 171-747 at
Finally, Graf and Ustich learned about some apparent inconsistencies in the Kohs' stories. Graf found the evidence of cleanup in the master bathroom suspicious, because it contradicted Mrs. Koh's version of events — during her interview, she stated that neither she nor her husband washed up in the bathroom after finding Paul's body. See Exh. 121, Eunsook Koh Interview Tr. at 12; see also Exh. 36, Graf Dep. Tr. 99:15-101:2. The detectives also learned that Mrs. Koh had maintained in her interview that she had not moved Paul's body, which was inconsistent with Mr. Koh's statement that they had turned the body over. Exh. 36, Graf Dep. Tr. 41:16-42:7; Exh. 44, Hyung Seok Koh Interview Tr. 23-24. Finally, Graf and Ustich learned that a neighbor had heard a scream from the Kohs' house. Exh. 46, May 16, 2011 Pretrial Hr'g Tr. 42:15-19. Mr. Koh had told Graf that he was a light sleeper, so Graf was skeptical that Mr. Koh could have slept through Paul's death. See id; see also Exh. 44, Hyung Seok Koh Interview Tr. 87.
Taking all of this evidence into account, a jury must conclude that there was probable cause to arrest Mr. Koh after the debriefing sessions. To be sure, this is a very close call, particularly when viewed through the lens of summary judgment. But probable cause is too low a bar for Mr. Koh to overcome after the debriefing session. See Kaley v. United States, 571 U.S. 320, 134 S.Ct. 1090, 1103, 188 L.Ed.2d 46 (2014) ("Probable cause ... is not a high bar."). Probable cause requires nothing more than a "fair probability" on which "reasonable and prudent" people could act. Kaley, 134 S.Ct. at 1103. Although the Kohs point out that the officers also had evidence that pointed towards Mr. Koh's innocence — that is, evidence suggesting that Paul might have committed suicide — the existence of some contrary evidence does not defeat probable cause. See District of Columbia v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 588, 199 L.Ed.2d 453 (2018) ("probable cause does not require officers to rule out a suspect's innocent explanation for suspicious facts"). The inference of the suspect's guilt need not be the most likely scenario, or even more likely true than not, for a reasonable officer to have probable cause to arrest. See Gerstein v. Pugh, 420 U.S. 103, 121, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (contrasting probable cause with the preponderance of evidence and reasonable doubt standards). Nor does it matter that none of the facts Graf and Ustich learned, viewed in isolation, would be enough for probable cause. See Wesby, 138 S.Ct. at 588. Probable cause is a holistic, commonsense
At the very least, qualified immunity would protect the individual defendants against the false arrest claim after the debriefing sessions. Graf and Ustich had "arguable probable cause" for purposes of applying the qualified immunity doctrine. Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 714-15 (7th Cir 2013). In other words, it would have been reasonable — even if mistaken — for an officer to believe that there was probable cause to arrest Mr. Koh based on the information divulged at the debriefing sessions. See Abbot, 705 F.3d at 714-15 ("[Q]ualified immunity in [the probable cause] context protects officers who reasonably but mistakenly believe that probable cause exists[.]" (citation omitted)); see also Fox, 600 F.3d at 834 (rejecting qualified immunity argument where the officers' theory of the case was "absolutely unreasonable"). As the Supreme Court emphasized in District of Columbia v. Wesby, existing precedent must place the lawfulness of the particular arrest "beyond debate" in order to defeat qualified immunity. Wesby, 138 S.Ct. at 590. In this case, the officers' decision to hold Mr. Koh after their debriefing sessions was at least arguably supported by probable cause. Qualified immunity therefore mandates dismissal of Mr. Koh's false arrest claim from after the debriefings and onward.
The probable cause inquiry is different for Mrs. Koh, mostly because the Northbrook Defendants unambiguously concede that there was no probable cause to hold her until at least the time of Mr. Koh's inculpatory statements at the end of his second interview. Northbrook Defs.' Mot. Summ. J. at 15 ("[I]t was not until Mr. Koh abandoned the Kohs' initial story, and then appeared to admit that he killed Paul, that probable cause was present."). But, as will be explained below, a reasonable jury could find that Mr. Koh's confession was coerced, and, more importantly, coerced in a way that made the reliability of his statements questionable. See Hurt v. Wise, 880 F.3d 831, 841 (7th Cir. 2018) (noting the importance of coercion to the question of a confession's reliability). A reasonable jury could find that Mr. Koh's confession was too unreliable to play a role in the probable cause analysis for Mrs. Koh. So in light of the Defendants' concession, Mrs. Koh's false arrest claim survives from the time of her initial detention until her release from the police station the next day. To be sure, the Defendants might be able to prove at trial that probable cause existed to detain Mrs. Koh at some earlier point in time. But as things stand, the Northbrook Defendants' motion for summary judgment is denied as to Mrs. Koh's false arrest claim.
Although the Kohs' false arrest claims survive against the Northbrook Defendants, any false arrest claim against Officer Kim must fail. Kim was not on the scene when the Kohs were arrested, and there no evidence that he knew or should have known that they had been arrested without probable cause. Without that knowledge, Kim could not have conspired to further the false arrest. See Scherer v.
Next, the Defendants move for summary judgment on Mr. Koh's coerced confession claim. Mr. Koh advances two versions of the coerced confession claim, one based on the Fifth Amendment right to be free of compelled self-incrimination, the other a substantive due process claim based on "conscience-shocking" police conduct. The substantive due process claim is readily rejected. As the Seventh Circuit recently noted, the bar for "conscience-shocking" conduct is extraordinarily high. Hurt v. Wise, 880 F.3d 831, 844 (7th Cir. 2018). What's more, "[w]hen there is an alleged violation of a specific constitutional provision, that provision should guide the court's analysis." Id. (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). In this case the specific alleged constitutional violation — the Fifth Amendment claim — precludes reliance on the more general substantive due process claim.
Moving on, the use of a coerced confession in a criminal proceeding violates the Fifth Amendment's guarantee against compelled self-incrimination. Miller v. Fenton, 474 U.S. 104, 109-10, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985); Sornberger, 434 F.3d at 1023-1027. A confession does not run afoul of the Fifth Amendment if, based on the totality of the circumstances, the confession was "free and voluntary," and "not [ ] extracted by any sort of threat or violence or obtained by any direct or implied promises however slight nor by the exertion of any improper influence." Howell v. United States, 442 F.2d 265, 272 (7th Cir. 1971) (citing Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)); see also Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). This standard requires the Court to determine, after examining the totality of the circumstances, whether "[the suspect's] will was overborne in such a way as to render his confession the product of coercion." Fulminante, 499 U.S. at 288, 111 S.Ct. 1246; see also Hicks v. Hepp, 871 F.3d 513, 527 (7th Cir. 2017) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The issue of coercion is determined from the perspective of a reasonable person in the position of the suspect. Hicks, 871 F.3d at 527. The characteristics of the suspect, the conditions of the interrogation, and the conduct of the interrogator are all part of the totality of the circumstances inquiry. United States v. Brooks, 125 F.3d 484, 492 (7th Cir. 1997). Relevant considerations include the suspect's age, intelligence and mental state;
With those standards in mind, the Court turns to the circumstances surrounding Mr. Koh's confession. Officers Graf and Ustich interviewed Mr. Koh for a combined total of about 2½ hours the morning after Paul died. See NDSOF ¶¶ 52, 78; Exh. 42, Video of Hyung Seok Koh Interview 1; Exh. 55, Video of Hyung Seok Koh Interview 2; Exh. 57, Video of Hyung Seok Koh Interview 3. Mr. Koh had not taken his medications for blood pressure, diabetes, and hyperammonemia since the day before (despite having asked Detective Graf for them), see PSOF ¶ 20; Pls.' Resp. WDSOF ¶ 32; Exh. 85, Mar. 16, 2010 Pretrial Hr'g Tr. 14:3-15:12; but see WDSOF ¶ 32; Exh. 39, Kim Dep. Tr. 131:4-22, nor had he recently eaten
Mr. Koh also had difficulty understanding Detective Graf's questions. Many of Mr. Koh's answers were altogether nonsensical, showing (or so a reasonable jury could find) that he did not understand what was going on. For example, Mr. Koh responded to Graf's question about what kind of person Paul was by narrating what happened yesterday morning. Exh. 44, Hyung Seok Koh Interview Tr. 3-4. At another point in the interview, Koh answered a question about whether he saw a weapon by telling Graf about the tools he kept for his vending machine business. Id. at 36. During one tense moment, Graf asked Mr. Koh "Would God want Paul to [] have his father sitting here and telling us a story that's not true?" — a question that should obviously have been answered "no" — but Mr. Koh said "yeah." Id. at 123. As the interview went on, Mr. Koh largely defaulted to giving one word or unintelligible answers, or responding that he did not know or could not remember, see, e.g., Id. at 108, 110-114, 116-119, 124, 126-135, 138-143.
What's more, the Kohs assert that what language assistance Officer Kim did provide made the circumstances even more coercive. For example, when translating the Miranda warnings into Korean, "Officer Kim did not advise Mr. Koh that his statements may be used against him, or that Mr. Koh had a right to an attorney if he could not afford one." PSOF ¶¶ 103-104; see also Pls.' Resp. WDSOF ¶ 36. And in fact, the Kohs argue, Officer Kim actually "advised Mr. Koh that he did not need a lawyer."
Finally, there were instances where Officer Kim would translate (or mistranslate) some, but not all, of Mr. Koh's statements, or interject in Korean with questions of his own. See, e.g., Exh. 42, Video of Hyung Seok Koh Interview 1 00:00:21-00:02:24; Exh. 57, Video of Hyung Seok Koh Interview 3 00:10:21-00:10:25, 00:12:24-00:12:36, 00:18:28-00:18:40. For example, during a key exchange, Graf tried to get Mr. Koh to admit that he had stabbed Paul in self-defense. At the same time, Kim started asking Mr. Koh questions in Korean, partially but not exactly translating Graf's words. See R. 308-73, Exh. 180, Yoon Report at 5; Exh. 57, Video of Hyung Seok Koh Interview 3 00:12:00-000:12:42. At the crucial moment, Graf and Kim asked overlapping questions: Graf asked in English whether Mr. Koh was angry, and before Mr. Koh could answer, Kim asked in Korean whether Mr. Koh acted in self-defense. Exh. 180, Yoon Report at 5. Mr. Koh said "I think so," leading Kim proclaim that "He said it was in defense" — even though Kim had not actually translated Graf's question about whether Mr. Koh was angry, so it was not clear which question Mr. Koh was answering. See Id. at 5; Exh. 44, Hyung Seok Koh Interview Tr. 136; Exh. 180, Yoon Report at 5; see also PSOF ¶ 119.
In addition to considering Mr. Koh's characteristics and the conditions of the
It is important too that Detective Graf used coercive mental and physical tactics throughout the interviews. He raised his voice, yelled at Mr. Koh, approached Mr. Koh, and occasionally touched Mr. Koh on his arms and legs. PSOF ¶ 33; Northbrook Defs.' Resp. PSOF ¶ 33; NDSOF ¶¶ 85, 92; Pls.' Resp. NDSOF ¶ 92; Exh. 44, Hyung Seok Koh Interview Tr. 103; Exh. 55, Video of Hyung Seok Koh Interview 2 00:55:20-01:09:53. (It is also worth noting that Officer Kim's gun was visible throughout the entirety Mr. Koh's interviews. NDSOF ¶ 97; WDSOF ¶ 9.) Detective Graf implicitly threatened that the interview would not end until Mr. Koh confessed, telling him that they could be there "for days and days and days" in order to get "the whole truth." Exh. 44, Hyung Seok Koh Interview Tr. 117; see also PSOF ¶ 37; Northbrook Defs.' Resp. PSOF ¶ 37. When Mr. Koh resisted the officer's version of events, Detective Graf would say things like, "And you're not telling the truth. You're not telling me the truth. God wants this to be right for Paul. And Paul wants you to do this." Exh. 44, Hyung Seok Koh Interview Tr. 123; id. 126-127; see also PSOF ¶ 34; Northbrook Defs.' Resp. PSOF ¶ 34. Graf absolutely refused to accept any of Mr. Koh's denials, asking questions over and over until Mr. Koh finally agreed to Graf's story. See, e.g., Exh. 44, Hyung Seok Koh Interview Tr. 34-35, 39-40, 102-103, 109-118, 124 ("Q: Tell us the truth. Tell us the truth. / A: My memory is — / Q: No, your memory is good ... You just don't ... you don't want to —"), 127-128 ("Q: But did you get in the car and drive to go look for him? ... / A. I don't know. / Q: Hyungseok, you're, you're telling stories now. You're not telling me the truth. / A: No, I, I — ... / Q: No, you're not. You would know if you went to the car and looked for him."), 132-145 ("A: Maybe. / Q: Not maybe. What happened?"). Detective Graf also ramped up the coercive tactics as soon as he learned that Mr. Koh's attorney was
Based on all of this evidence, a reasonable jury could infer that Mr. Koh's "will was overborne so as to render his confession the product of coercion." Fulminante, 499 U.S. at 288, 111 S.Ct. 1246. The combined effect of Mr. Koh's vulnerabilities, the language barrier, the coercive atmosphere in the interrogation room, Detective Graf's interrogation tactics, and Officer Kim's deficient performance as translator is enough for a jury to find that Mr. Koh's confession was involuntary. Indeed, courts have recognized that circumstances like those under which Mr. Koh confessed may render a confession involuntary. See Haynes v. Washington, 373 U.S. 503, 504, 514-15, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (confession involuntary where the suspect was not given Miranda warnings, was held incommunicado for 16 hours, and was told he could not call his wife until he signed a confession); Carrion v. Butler, 835 F.3d 764, 776 (7th Cir. 2016) (observing that "evidence that Detective Delgadillo, in acting as translator, manipulated or mistranslated the prosecutor's questions or Mr. Carrion's answers is relevant to the extent that it demonstrates coercive conduct"); Aleman v. Vill. of Hanover Park, 662 F.3d 897, 906 (7th Cir. 2011) (reversing dismissal of involuntary confession claim where the defendant "forced on [the suspect] a premise that led inexorably to the conclusion that he must have been responsible for Joshua's death; the lie if believed foreclosed any other conclusion"); Andersen v. Thieret, 903 F.2d 526, 530 (7th Cir. 1990) (reasoning that "[f]ood, sleep, and water deprivation and a mentally coercive interrogation would also have caused the state courts to conclude that [a] confession was involuntary" (citations omitted)); United States v. Short, 790 F.2d 464, 469 (6th Cir. 1986) (finding that "[t]here is a serious question whether Short's second confession was knowing and intelligent": "Short's English was broken and her understanding of English deficient.... [S]he was separated from her children and subjected to an interrogation in English, even though one of the agents spoke some German"); United States v. Preston, 751 F.3d 1008, 1027-28 (9th Cir. 2014) (repetitive questioning, threats to continue interrogation indefinitely, pressure to adopt certain responses, use of two incriminating alternative questions, and false promises to an intellectually disabled suspect rendered a confession involuntary); cf. Nazarova v. I.N.S., 171 F.3d 478, 484 (7th Cir. 1999) ("A non-English-speaking alien has a due process right to an interpreter at her deportation hearing because, absent an interpreter, a non-English speaker's ability to participate in the hearing and her due process right to a meaningful opportunity to be heard are essentially meaningless.").
These circumstances also make clear that the interrogators are not entitled to qualified immunity. A reasonable officer would have known that verbally and physically intimidating a suspect, as well as manipulating him, lying to him, and coaching him on the details of the confession, all while knowing he was not fluent in English and was operating without food, medications, or sleep, violates the Fifth Amendment. And a reasonable officer assigned to interpret for that suspect would have recognized that manipulating his deficient understanding of English, mistranslating the Miranda warnings, and altogether refusing to provide translation assistance, likewise violates the Constitution.
The Seventh Circuit's recent opinion in Hurt v. Wise is helpful here. In Hurt, the Seventh Circuit held that interrogating officers were not entitled to qualified immunity when they extracted a confession using tactics strikingly similar to Graf's. Hurt, 880 F.3d at 848. Like Graf, the interrogators in Hurt threatened to extend the plaintiffs' interrogations until they gave the "right" answer (where "right" meant "inculpatory"). 880 F.3d at 847-48. Also like Graf, the officers in Hurt "basically drafted the entire confession" by feeding the plaintiffs "every critical fact" and refusing to accept their denials until they finally agreed to the version proposed by the interrogators. Id. And, like Graf, the officers applied interrogation tactics designed to increase psychological pressure to confess, such as minimizing moral guilt to prime the plaintiffs for a confession, and telling one plaintiff that her co-defendant had already implicated her. Id. at 848.
The defendants attempt to distinguish Hurt on the grounds that the interrogators in Hurt "made obviously prohibited threats of lengthy prison sentences and untimely death, and that a suspect's entire family would be imprisoned if she did not confess." R. 380, Defs.' Resp. to Pl.'s Supp. Authority at 3, discussing Hurt, 880 F.3d at 848. But the cases are not so different, because threats were also made to Mr. Koh. Hurt noted the interrogator's threat that the pain of the coercive interrogation would continue until the suspect confessed. Hurt, 880 F.3d at 848 (quoting the investigator as saying that "none of the pain was `going to go away until you tell me the truth.'"). Similarly, Graf told Koh (who by that point was visibly distressed and confused) that if he did not tell "the truth," his
But even assuming that Mr. Koh was not threatened with physical violence, the facts of this case are arguably worse than the facts of Hurt. Unlike the plaintiffs in Hurt, Mr. Koh had obvious difficulties understanding English — a vulnerability that, taking the facts in the light most favorable to the Kohs, Graf and Kim exploited. A reasonable jury could conclude that Graf knew that he was pressuring Mr. Koh to agree with statements that he did not fully understand.
Next up is another due process claim, this time based on the Northbrook Defendants' alleged fabrication of evidence.
Mr. Koh's first theory falls short. The Seventh Circuit has drawn a distinction between coerced testimony
Mr. Koh's next argument is that Graf fabricated a statement from Paul Koh's youth pastor, Joon Hwang. See Pls.' Resp. Br. at 51-52. Hwang was interviewed by two non-defendant police officers on the morning of April 16, 2009. Exh. 47, Garner Aff. ¶ 5. According to the officers' report of the interview, Hwang stated that Mrs. Koh told him that "maybe Paul was afraid that his father would not respect his privacy, or perhaps feared his father." Exh. 47, NORTAF Interview Report at 2 (emphasis added). Graf then told ASA Albanese, who was conducting the felony review of the case, that Hwang said that Paul Koh feared his father.
Mr. Koh's last theory is that Graf fabricated testimony by encouraging Paul Koh's friend Neil Schnitzler to make false statements that incriminated Mr. Koh. See Pls.' Resp. Br. at 52-53. In the course of the investigation into Paul's death, Schnitzler gave three different statements to the police, each with slightly different details.
Unfortunately for the Kohs, there is no evidence at all that Graf or any other officer falsified Schnitzler's testimony. Schnitzler affirms that he made this statement,
The Kohs believe that the Defendants maliciously prosecuted Mr. Koh, and that Mr. Koh was detained without probable cause in the time leading up to his criminal trial in violation of the Fourth Amendment. The Fourth Amendment claim stems from the Supreme Court's recent decision in Manuel v. City of Joliet, which held that the Fourth Amendment prohibits detention without probable cause even after a defendant has received legal process.
Both the malicious prosecution claim and the extended Fourth Amendment claim are stymied by the existence of probable cause. As discussed above, a reasonable factfinder would have to find that there was probable cause to detain Mr. Koh before the start of his second police interview. See Section III.B.2.a, above. No information later emerged to destroy probable cause. Indeed, some later-revealed facts actually reinforced the theory that Mr. Koh killed Paul. Interviews with Paul's friends, for example, confirmed that Paul and Mr. Koh fought frequently, and that Paul seemed to be afraid of Mr. Koh. See R. 308-13, Exh. 120. Mazurkiewicz Dep. Tr. 37:15-18; 65:22-66:1; R. 308-15, Exh. 122, Petersen Dep. Tr. 67:16-23; Exh. 75, Schnitzler Dep. Tr. 195:10-18, 213:18-23. Emerging physical evidence also suggested that Mr. Koh might be guilty. The Cook County Medical Examiner who performed Paul's autopsy concluded that Paul's death was a homicide, and found injuries that could be defensive wounds on Paul's hands. NDSOF ¶ 106; Pls.' Resp. NDSOF ¶ 106; R. 286-7, Exh. 52D, Helma Aff. Exh. D. Blood spatters were also found on Mr. Koh's boxer shorts. R. 308-5, Exh. 112, Trial Tr. 334:5-9.
It is true that some evidence also emerged to support the competing version that Paul (who by all accounts was suffering from serious mental health issues) committed suicide. The same friends who told police about Paul's conflict with his father also noted that Paul seemed sad, depressed, and anxious. Exh. 120, Mazurkiewicz
In addition to their claims against the individual defendants, the Kohs seek to hold the Village of Northbrook liable for violating their constitutional rights. Municipal liability is permitted under Section 1983 "if the unconstitutional act complained of is caused by: (1) an official policy adopted and promulgated by its officers; (2) a governmental practice or custom that, although not officially authorized, is widespread and well settled; or (3) an official with final policy-making authority." Thomas v. Cook Cty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2010); Monell v. N.Y. City Dept. of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Kohs premise their Monell claims on the first and third grounds for municipal liability — namely, that a Northbrook Police Department General Order and Chief Wernick himself were the moving forces behind their alleged constitutional violations. See Pls.' Resp. Br. at 53-59. The Court addresses each basis for Monell liability in turn.
Section 15.14, Paragraph 4, of the NPD General Orders outlines department protocols for managing and communicating with witnesses at crime scenes:
R. 292-3, Exh. 102, NPD General Order 15.14 ¶ 4 (emphasis added); see also NDSOF ¶ 124. According to the Kohs, Northbrook officers acted pursuant to this policy when they falsely arrested them the morning of Paul's death Pls.' Resp. Br. at
The express policy theory of municipal liability, as the name of the theory suggests, applies where a policy explicitly "violates the constitution when enforced." Hahn v. Walsh, 762 F.3d 617, 636 (7th Cir. 2014). The plaintiff must be able to point to "language in the ... policy that is constitutionally suspect, [or] he must provide enough evidence of custom and practice to permit an inference that the [municipality] has chosen an impermissible way of operating." Calhoun v. Ramsey, 408 F.3d 375, 381 (7th Cir. 2005). Liability may attach even where just "one application of the policy result[s] in a constitutional violation," Calhoun, 408 F.3d at 379; see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 822, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Hahn, 762 F.3d at 636-37.
There is ample evidence for a jury to reasonably infer that the Northbrook Defendants acted pursuant to an unconstitutional policy — Section 15.14 — when they falsely arrested the Kohs the morning of Paul's death. Just looking at the language of the Order is enough to raise eyebrows. Section 15.14 orders officers to "[s]ecure," "[s]eparate," "arrange [for] transport[]," and hold all witnesses at the police station "until they have been interviewed." Exh. 102, NPD General Order 15.14. Tellingly, there is no prefatory language in Section 15.14 that tempers its application. It would be one thing if Section 15.14 contained a qualifier requiring officers to obtain the witnesses' consent, for example. But there is no language to this effect. That Section 15.14 on its face gives officers seemingly boundless authority to seize, transport, and detain a witness without their consent — and without stopping to consider the existence of reasonable suspicion or probable cause — is evidence that the order explicitly violates the Fourth Amendment.
And there is enough evidence that the officers acted pursuant to Section 15.14 when they secured and separated the Kohs at their house before driving them to the station and holding them there for hours on end. Both Commander Eisen and Officer Johnson were aware of Section 15.14 in April 2009;
The Kohs' second theory of municipal liability is that Chief Wernick — an official with final policy-making authority — directed officers to violate the Kohs' constitutional rights, or at the very least, ratified their misconduct.
To proceed on a final policymaker theory of municipal liability, the Kohs must establish, among other things, that there is at least a genuine issue of fact as to whether Chief Wernick caused any of their alleged constitutional injuries. See King v. Kramer, 763 F.3d 635, 649 (7th Cir. 2014); Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509, 515 (7th Cir. 2007). To be sure, Chief Wernick "need not [have] participate[d] directly in the deprivation [of civil rights]," in order for liability to attach. Backes v. Vill. of Peoria Heights, Ill., 662 F.3d 866, 869-70 (7th Cir. 2011) (quotations and citations omitted). But there must be enough evidence from which a jury could infer that Chief Wernick "kn[e]w about the [mis]conduct and facilitate[d] it, approve[d] it, condone[d] it, or turn[ed] a blind eye for fear of what [he] might see." Id. at 870 (quotations and citations omitted).
Even assuming that Chief Wernick was Northbrook's final policymaker — an issue which the parties dispute, see Pls.' Resp. Br. at 56-57, Northbrook Defs.' Reply Br. at 35 n. 36 — a reasonable jury could not find that Chief Wernick caused the Kohs' alleged constitutional violations. The Kohs cannot point to any evidence that Chief Wernick ordered their false arrest or that he directed Officers Graf, Ustich, and Kim to coerce a confession out of Mr. Koh. That Chief Wernick was one of the officers who responded to Mr. Koh's 911 call; investigated Paul's death; attended briefings on the investigation; viewed the videotape of Mr. Koh's interrogation; and oversaw the investigation as both the
Last up is Mrs. Koh's state-law loss of consortium claim, which is premised on her loss of her husband's companionship during his years-long pretrial detention. Under Illinois law, when one spouse is tortiously injured, the other spouse may recover from the tortfeasor for the resulting loss of support, society, and companionship. Pease v. Ace Hardware Home Ctr. of Round Lake No. 252c, 147 Ill.App.3d 546, 101 Ill.Dec. 161, 498 N.E.2d 343, 349 (1986). At this point, Mr. Koh's state-law tort claim for malicious prosecution has been dismissed, and all that remains are his constitutional claims.
Neither party has briefed whether a state-law loss of consortium claim can arise out of a constitutional claim.
For the reasons discussed, the following claims survive and may go to trial:
Summary judgment is granted to Defendants on the remaining claims:
For convenience's sake, the Court will refer to the Northbrook officers and the Village of Northbrook collectively throughout the Opinion as the "Northbrook Defendants," unless context dictates otherwise. Likewise, the Court will refer to Officer Kim and the Village of Wheeling collectively as the "Wheeling Defendants," unless context dictates otherwise.
