Wrongful Conviction Lawsuit Defense Blog : Wrongful Conviction Defense Lawyer & Attorney : Andrew M. Hale Law Firm

The Chicago Tribune is reporting: 

"A Chicago police sergeant and two officers were acquitted today in connection with the off-duty beating of several patrons at a West Loop bar in December 2006.

Following a bench trial several weeks ago, Circuit Judge Thomas V. Gainer Jr. found Sgt. Jeffery Planey and Officers Gregory Barnes and Paul Powers not guilty of aggravated battery charges in the attack at the Jefferson Tap and Grille.

The judge also acquitted Planey of obstruction of justice and official misconduct for allegedly waving away on-duty police responding to a silent alarm from the bar. Security video was central to the prosecution case, but only Planey was caught on the tape getting physical with one victim.

Gainer was brief in his comments, saying he had reviewed all the testimony at trial as well as security videotapes and audio from a 911 call.

"After doing all of that, I have come to the conclusion that the state has failed to meet its burden in the charges against these men," he said.

"Prosecutors had alleged the officers jumped brothers Barry and Aaron Gilfand and two of their friends as they played pool. When police showed up at the bar, the off-duty officers felt they wouldn't be held accountable because Planey formerly worked in the district, Assistant State's Atty. Lauren Freeman said in closing arguments.

Attorneys for the officers said the attack was provoked by the alleged victims mocking Powers for crying over the recent death of his father. They contended the Gilfands exaggerated their injuries and altered their accounts of that night to boost their chances at winning a lot of money in their pending federal lawsuit against the officers and the city. Barnes' attorney, William Fahy, said that describing the Gilfands as victims was an insult to real crime victims, calling the brothers "a couple of loud-mouthed drunks." Fahy said Aaron Gilfand recently identified Barnes as his attacker for the first time after the state's only independent witness, bartender Lindsay Vanderford, said in a deposition for the lawsuit that she could have been mistaken about her identification of Barnes. During the trial, Vanderford again admitted that she was likely mistaken about her identification.

In his defense of Planey, attorney Thomas Needham stitched together dozens of bits of evidence, testimony and what he argued were reasonable inferences in an attempt to persuade Gainer that his client did not order or intend to send police away from the scene. Planey, the only defendant whose alleged crimes were captured on security video, faces two counts of aggravated battery for his alleged attack on Barry Gilfand -- that he caused bodily harm and that he insulted the alleged victim through his actions. But Needham said Gilfand was uninjured and that just because the sergeant pushed him against the wall did not mean he insulted Gilfand. Attorney Lori Lightfoot said her client, Powers, could not have assaulted Barry Gilfand in the manner he described because his testimony is contradicted by his appearance in security video moments after the alleged attack and the absence of bruises or significant injury." 

 

Amanda Antholt who represents plaintiffs in a lawsuit against these officers and the City of Chicago says she is disappointed with the verdict but she is confident that the civil suit will provide "justice" for her clients.

We will wait and see what happens in the civil case.  For now - congrats to the criminal defense team.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Judge Kennelly denies summary judgment in a wrongful death case. "This case involves Bradley's fatal shooting of Benjamin on April 26, 2006 during a response to a domestic violence call." After arriving for the call, police found Benjamin standing naked and unarmed in the courtyard. Bradley attempted unsuccessfully to grab and arrest him. Benjamin told Bradley that he was going to have to do better than that in order to stop him. Benjamin took a baby and ran. Bradley contends that Benjamin slipped and fell outside of the apartment's bathroom, dropping the baby in the process. Benjamin then picked up the child and took it into the bathroom. Bradley followed them into the bathroom where he saw the two of them in a full bathtub. Bradley says that Benjamin was holding the baby under the surface of the water and indeed, approximately twenty seconds after he reported that Benjamin had picked up the child, he reported over his radio to dispatch, "He's trying to drown the kid." Bradley says he told Benjamin to let go of the baby. They then began to struggle. Bradley was able to pull the baby out of the tub. He says that Benjamin continued to strike at him from the bathtub, hitting him in the face, neck and chest. Bradley handed off the baby to someone else. " Bradley continued to struggle with Benjamin. "Bradley [police officer] asserts that Benjamin's [victim] attack on him in the bedroom justified his use of deadly force. More specifically, he contends that he knew Benjamin was violent based on the original call from dispatch; Benjamin's irrational behavior at the scene; his statement, after being pepper sprayed, that Bradley would have to do more to stop him; Benjamin's attempt to drown a baby; and his violent attack just before Bradley shot him. Bradley contends that the circumstances of that attack placed him in imminent danger of serious bodily injury or worse." Judge Kennelly explained: "A jury that believed Bradley's account almost certainly would find that his use of deadly force was objectively reasonable. Plaintiff provides no eyewitness testimony to rebut Bradley's account. That, however, is unsurprising given that Bradley alone survived the encounter between him and Benjamin. The Seventh Circuit has cautioned that "[t]he award of summary judgment to the defense in deadly force cases may be made only with particular care where the officer defendant is the only witness left alive to testify." Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir.1994). Because a defendant in a self-defense case "knows that the only person likely to contradict him or her is beyond reach ... a court must undertake a fairly critical assessment of the forensic evidence, the officer's original reports or statements and the opinions of experts to decide whether the officer's testimony could reasonably be rejected at trial." Id; see also Maravilla, 60 F .3d at 1233-34 ("In these situations we think it wise to examine all the evidence to determine whether the officers' story is consistent with other known facts."). See generally Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir.2005) (because Fourth Amendment reasonableness inquiry "nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom ... summary judgment ... in excessive force cases should be granted sparingly" (internal quotation marks and citation omitted))." Plaintiff claims that photographs of injuries sustained to the police officer call into question his version events - as such - the "photographs" help sustain the "question of fact" Judge Kennelly did however grant summary judgment on the Monell claim against the village: "Plaintiff offers no evidence of other instances of deadly force or even excessive force violations by the Glen Ellyn Police Department. Indeed, he makes no mention of any such occurrences. It therefore appears that he is proceeding under the first method of proving deliberate indifference. Plaintiff's Monell theory is, however, asserted rather vaguely. Plaintiff offers no direct support for his contention that the Village failed to train Bradley on the proper use of deadly force. His failure to train theory is best discerned, as defendants suggest, through the opinions of retired Alabama police investigator William Gaut, plaintiff's expert witness. Gaut testified that the Village's failure to properly train officers and dispatchers on how correctly to respond to a domestic violence complaint FN2 resulted in Bradley's decision to approach Benjamin alone, without waiting for back-up to arrive-a decision that plaintiff contends led to Bradley's unjustified use of deadly force." Benjamin Obi Nwoye and Douglas Hopson represent the plaintiff Thomas George DiCianni of Ancel Glink represents the defendants. See Uwumarogie v. Village of Glen Ellyn, 2008 WL 2782833 (July 15, 2008)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a Memorandum, Opinion and Order dated March 15, 2007, Northern District of Illinois Judge Wayne R. Andersen has dismissed plaintiff Rodolfo Sanchez's excessive force claim against the Town of Cicero. The court noted that "in order to successfully plead a cause of action against a municipality under 42 U.S.C. 1983, the plaintiff must allege unconstitutional conduct by a municipal employee that was perpetrated according to a municipal 'policy' or 'custom' and which directly caused plaintiff's injury," citing Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). In dismissing the excessive force claim against the Town of Cicero, the court stated: "The plaintiff's first amended complaint fails to meet the pleading requirements for a section 1983 claim against a municipality. Plaintiffs have failed to allege that the unconstitutional conduct of the municipal police officers was perpetrated according to any policy or custom of the Town of Cicero. There are no allegations as to an express policy of the Town of Cicero endorsing excessive force by the police. There are also no allegations that use of excessive force is a widespread practice within the Town of Cicero police department amounting to a well-settled custom. Finally, plaintiffs have not alleged their unconstitutional deprivations were a result of the conduct of an individual with final policymaking authority in the Town of Cicero." The full opinion can be found at 2007 WL 844588. The Town of Cicero was represented by Kevin Horan and James Novy of the law firm of Rock Fusco, LLC.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Plaintiff Prince Foryoh alleged that on July 10, 2001 the police stopped his car without reason and arrested him using excessive force. Foryoh was released a few hours later and criminal charges were filed but later dismissed. Plaintiff filed suit on May 18, 2005 under 42 USC 1983 against Regina Hannah-Porter, one of the arresting officers. The Seventh Circuit held that plaintiff's claim for wrongful arrest accrued when he was released from custody on July 10, 2001, citing the Supreme Court's recent decision in Wallace v. Kato. The court also held that plaintiff's claims based on excessive force and unlawful search accrued a few hours earlier the same day, as soon as plaintiff sustained injury for those alleged wrongs. The court confirmed that the time limit for Section 1983 claims in Illinois is two years, not the five-year residual statute of limitations that plaintiff had argued should apply.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

An Illinois State Police investigation has concluded that McHenry County Sheriff's Deputy Zane Seipler was justified in using deadly force when he shot forty-three year old David Maxson with a shotgun firing small bean bags. The investigation found that Maxson ran towards Deputy Seipler waiving a knife. Seipler responded by firing three silver dollar sized bean bags at Maxson. The McHenry County State's Attorney's Office agreed that deadly force was was warranted. This was the first use of the bean bag weapon by McHenry County Sheriff's deputies. The bean bag weapon is typically intended for situations when less than lethal force is needed, but can be used as a lethal weapon according to police officials.

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

The Seventh Circuit Court of Appeals has held that a Janesville, Wisconsin police officer's use of deadly force was reasonable, thereby affirming the district court's granting of summary judgment in the officer's favor. Garrett Henning was shot by Officer Timothy O'Leary after resisting arrest. The court first stated that "Deadly force, which O'Leary employed in this case, is reasonable where an officer has reasonable cause to believe that the suspect poses a danger of serious bodily harm, such as when the officer believes the suspect has a weapon or has committed a violent crime." The court went on to state that "Here, there can be no doubt that O'Leary had the requisite reasonable cause. In the tense struggle that followed Henning's refusal to submit to the officers' attempts to handcuff him, Peterson's gun got loose, and at least two officers believed Henning had his hands on or near it. Police officers cannot be expected to wait until a resisting arrestee has a firm grip on a deadly weapon and completely freed himself from officers trying to subdue him before taking action to ensure their safety. Nor can they be required to take a less deadly shot where none is available that would not place someone else also in jeopardy." Finally, the court held that plaintiff offered no real evidence in opposition to the motion, stating "The Hennings dispute the officers' characterization of the events, but they offer no real evidence to contradict it. . . Yet, minor inconsistencies are not unusual - indeed exact, step by step recall of this incident by three different officers would be unusual. Absent something else, the Hennings really offer nothing to corroborate their version of the events - certainly not enough to get them to a jury. The plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment." The Seventh Circuit panel was comprised of Judges Easterbrook , Posner and Evans.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

On December 5, 2000, James Thompson died after he struggled with police officers who were trying to handcuff him. The Cook County Medical Examiner ruled Thompson's death a homicide, concluding that Thompson died at least in part from a "choke hold." Thompson's mother and wife filed suit in the Northern District of Illinois against the City of Chicago and eleven Chicago Police Officers. The plaintiffs alleged that the defendants violated Thompson's Fourth and Fourteenth Amendment rights by using excessive force. Prior to trial, the defendants filed several motions in limine including motions seeking to bar the plaintiffs from introducing: (1) the opinion testimony of officers from the CPD's Office of Professional Standards concerning their investigation into Thompson's death and (2) the CPD's General Orders, practices and policies (or the Officers failure to act in accordance with those Orders, practices and policies). The District Court judge, the Honorable Amy J. St. Eve, granted the motions and the case proceeded to trial. The jury found in favor of the defendants. Plaintiffs appealed, claiming the District Court erred in granting the motions in limine. On appeal, the Seventh Circuit affirmed. The court held that "[i]n this case, the text of the CPD's General Orders pertaining to the use of force would not have been of any consequence whatsoever and would have failed to advance the inquiry into whether Officer Hespe violated Thompson's Fourth Amendment rights by using excessive force in apprehending him." The court stated that "[w]hether Officer Hespe's conduct conformed with the internal CPD General Orders concerning the use of force on an assailant was irrelevant to the jury's determination of whether his actions on December 5, 2000 were 'objectively reasonable' under the Fourth Amendment." Finally, the court affirmed the District Court's exclusion of expert testimony concerning excessive force, stating "whatever insight Inspector Lukas and Sgt. Campbell might have had into whether or why Officer Hespe used excessive force would have been of little value except as to possibly causing confusion and bore a substantial risk of prejudice." The opinion was authored by Judge Coffey and joined by Judges Evans and Williams.

• Email This
• Print
• Comments
• Trackbacks
• Share Link