Case Information
*1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
AMANDA JANE BERGQUIST, Plaintiff, Case No. 18-cv-3619 v.
DONALD MILAZZO, et al.
Judge John Robert Blakey Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Amanda Bergquist sues Cook County, Cook County Sheriff Tom Dart, the Cook County Sheriff’s Office, and four of its officers under 42 U.S.C. § 1983. She alleges that they violated her First and Fourth Amendment rights by detaining her for recording a video outside of a county courthouse. [34]. All Defendants move to dismiss Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6). [62]. For the reasons explained below, this Court grants the motion in part and denies it in part.
I. The Complaint’s Allegations [1]
A. Plaintiff Films Bridgeview Courthouse
On March 28, 2018, Plaintiff entered the Bridgeview Courthouse in Bridgeview, Illinois to address a ticket. [34] ¶ 17. Upon discovering a handheld camera in Plaintiff’s purse, courthouse security informed her that she could not *2 proceed. Id . ¶ 18. Plaintiff exited the building and began filming its exterior. Id . ¶¶ 19–20.
Shortly thereafter, a deputy sheriff asked Plaintiff why she was filming. Id . ¶ 23. Plaintiff responded that she was doing it “because she wanted to.” Id . ¶ 24. The deputy then called for his supervisor, Defendant Milazzo, who approached Plaintiff. Id . ¶ 26. The following conversation ensued:
Milazzo: Ma’am do you know this is a public building?
Plaintiff: Exactly. That’s why I’m recording it.
Milazzo: It’s also a court facility . . .
Plaintiff: Yep
Milazzo: Which there is a judicial law or order that says you cannot tape this building.
Plaintiff: Can I see that order?
Milazzo: Yes, come on, we’re going to check your IDs too.
Plaintiff: Oh no. I’m not going in.
Milazzo: Oh yeah, no no no. We’re going to run you too.
Plaintiff: No, that’s alright.
Milazzo: We’re going to get your name, we’re going to do a report, and everything, so come on in.
Plaintiff: Um, no.
Milazzo: Yeah, you’re going to come in now.
Plaintiff: I’m being detained?
Milazzo: [Y]es.
Id .
B. Deputies Handcuff Plaintiff And Place Her In Custody After this exchange, Milazzo took Plaintiff’s camera and instructed Defendants Deputy Sheriff Dorociak and Deputy Sheriff Sergeant Larson to handcuff her. Id . ¶ 33. They did so and led Plaintiff inside the courthouse. Id . These Defendants then repeatedly asked why she filmed the building and for a form of identification, but *3 Plaintiff refused to answer and voiced her objection to any search or seizure. Id . ¶¶ 41–43. She also requested to call her lawyer. Id . ¶ 45.
Plaintiff remained in custody for three hours while certain of the Defendants attempted to identify her; while in custody, Larson and Milazzo threatened Plaintiff with jail time. Id . ¶¶ 47, 48, 121. Larson asked Plaintiff if she wished to call a lawyer, and although Plaintiff responded affirmatively, neither Larson nor Milazzo gave her the opportunity. Id . ¶ 52. Milazzo also deleted the footage from Plaintiff’s camera and eventually searched Plaintiff’s purse, finding her ID card. Id . ¶¶ 49, 55.
While Defendants detained Plaintiff, Milazzo informed his supervisor, Defendant Deputy Chief Jackson, of the developing situation. Id . ¶ 58.
After finding Plaintiff’s ID card, Milazzo and Larson brought her before Judge Peter Felice. Id . ¶ 59. Judge Felice ordered Plaintiff to turn over the camera’s SD card and ordered her to return to court two days later. Id . ¶¶ 63, 65, 67–68. Plaintiff appeared as ordered and received back the SD card. Id . ¶¶ 71, 73. She later successfully recovered the deleted footage. Id . ¶ 74.
C. Plaintiff’s Claims
Plaintiff brings a ten-count complaint. Counts I and II assert that all of the Defendants engaged in First Amendment retaliation in violation of 42 U.S.C. § 1983 by handcuffing, detaining, and arresting Plaintiff for exercising her right to record a public building. [34] ¶¶ 93–111. Count III asserts that all Defendants violated the Fourth Amendment by detaining and arresting Plaintiff, and Count IV alleges that all Defendants but Jackson violated the Fourth Amendment by seizing her camera. *4 Id. ¶¶ 112–38. Counts V, VI, and VII allege that Defendants Milazzo, Dart, the Cook County Sheriff’s Office, and Cook County violated the Fourth Amendment by searching her camera (Count V), seizing its footage (Count VI), and searching her purse (Count VII). Id. ¶¶ 139–70. Plaintiff alleges a constitutional abuse of process claim against all Defendants in Count VIII. Id . ¶¶ 171–78. Finally, Counts IX and X allege that Defendants Dart, the Cook County Sheriff’s Office, and Cook County are municipally liable under § 1983 for maintaining a policy of arresting people for taking pictures of public buildings, or alternatively, for their failure to supervise and train police officers on the proper way to conduct investigations of a criminal suspect. Id . ¶¶ 179–97.
II. Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide
a “short and plain statement of the claim” showing that the pleader merits relief, Fed.
R. Civ. P. 8(a)(2), so the defendant has “fair notice” of the claim “and the grounds
upon which it rests,”
Bell Atl. Corp. v. Twombly
,
A complaint must also contain “sufficient factual matter” to state a facially
plausible claim to relief—one that “allows the court to draw the reasonable inference”
that the defendant committed the alleged misconduct.
Ashcroft v. Iqbal
, 556 U.S.
662, 678 (2009) (quoting
Twombly
,
III. Analysis
Defendants move for dismissal on all counts of Plaintiff’s second amended complaint. [62].
A. Count VIII: Abuse of Process
In Count VIII, Plaintiff asserts a Section 1983 “abuse of process” claim, alleging that Defendants abused the criminal investigatory process by arresting and detaining her, bringing her to court, ordering her property seized, and threatening her with jail time. [34] ¶ 173.
This claim fails at the outset because “abuse of process is not a free-standing
constitutional tort if state law provides a remedy for abuse of process,” and “Illinois
provides such a remedy.”
Adams v. Rotkvich
,
B. Counts I and II: First Amendment Retaliation Claims In Counts I and II, Plaintiff alleges First Amendment claims for “unlawfully preventing recording of public building and retaliation” (Count I) and retaliation (Count II). [34] ¶¶ 93–111. Count I asserts that Defendants retaliated against Plaintiff by detaining or arresting Plaintiff for exercising her First Amendment rights to record a public building. Id. ¶¶ 93–102. And Count II asserts that Defendants retaliated against Plaintiff by refusing to release her after Plaintiff demanded an attorney, asserted her right to remain silent, refused to consent to searches and seizures, and refused to comply with Defendants’ demands to identify herself. Id. ¶¶ 104–11.
To prevail on her First Amendment retaliation claims, Plaintiff must plead and
prove three elements: (1) she engaged in activity protected by the First Amendment;
(2) she suffered an adverse action that would likely deter future First Amendment
activity; and (3) the First Amendment activity was “at least a motivating factor” in
the Defendants’ decision to retaliate.
Lavite v. Dunstan
,
Although Defendants move to dismiss Plaintiff’s entire SAC, their briefs remain silent as to why specifically the First Amendment retaliation claims should be dismissed. [62] [75]. When this Court asked Defendants to address these counts at the motion hearing, Defendants argued that they lacked retaliatory motives. This *7 argument is misplaced at the motion to dismiss stage, however, because this Court must take as true Plaintiff’s allegations that Defendants possessed retaliatory motives.
At the motion hearing, Defendants also argued that while the First
Amendment provides rights to film generally, reasonable restrictions can curtail
those protected rights. To be sure, while filming constitutes an activity protected by
the First Amendment,
ACLU v. Alvarez
, 679 F.3d 583, 595 (7th Cir. 2012), First
Amendment rights are not absolute,
Braun v. Baldwin
,
As such, Defendants contend that a general order applicable to the Bridgeview Courthouse constituted an example of such a reasonable restriction. See [62] at 5. That general order provides:
Except as noted below, all mobile computing and telecommunication devices including, but not limited to, cellular telephones, smart phones, laptop and tablet computers, and other electronic devices capable of connecting to the Internet or making audio or video recordings are prohibited in the Circuit Court of Cook County, Illinois.
General Administrative Order No. 2013-01 (Circuit Ct. of Cook County). But the general order, by its plain terms, prohibits filming only in the courthouse. Id. Thus, it does not apply here, where Plaintiff alleges that she filmed only outside the *8 courthouse. See [34] ¶¶ 20–21. Without further explanation as to how that general order might apply here, or whether another statute, ordinance, or regulation might apply, the Defendants fail to identify a legal provision placing a reasonable restriction on Plaintiff’s speech. Thus, at this early juncture in the proceedings, this Court rejects Defendants’ argument that Plaintiff fails to allege a First Amendment claim arising from protected activity.
C. Counts III–VII: Fourth Amendment Claims Counts III through VII alleges Fourth Amendment claims for: unlawful detention and arrest (Count III); unlawful seizure of Plaintiff’s camera (Count IV); unlawful search of camera (Count V); unlawful seizure of camera footage (Count VI); and unlawful search of Plaintiff’s purse (Count VII). [34] ¶¶ 112–70.
The Fourth Amendment protects the “right of the people to be secure in their
persons . . . against unreasonable searches and seizures.”
Lewis v. City of Chicago
,
Defendants’ sole argument regarding Plaintiff’s Fourth Amendment claims
distills to the notion that Milazzo and Larson possessed probable cause when they
took Plaintiff into custody.
See
[62] at 4–11. Like the First Amendment retaliation
claims, Defendants argue they possessed probable cause because Plaintiff violated
the general order regarding filming.
E.g.
, [62] at 6. But as discussed above, the
judicial order at issue concerns filming
inside
the courthouse, while Plaintiff alleges
that she filmed
outside
the courthouse. [34] ¶¶ 20–22. Thus, taking Plaintiff’s
allegations as true, this Court cannot find as a matter of law—at this stage of the
litigation—that any Defendant possessed probable cause to detain Plaintiff.
Moreover, whether probable cause existed remains a “fact-intensive inquiry,” that
usually presents as “a question for the jury.”
Jones by Jones v. Webb
,
And as to Plaintiff’s unlawful search claims, where there exists a lawful
custodial arrest, a “full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a reasonable search under that
Amendment.”
United States v. Thomas
,
D. Monell Claims
In Counts IX and X, Plaintiff brings claims against Cook County, Cook County
Sheriff’s Office, and Dart under
Monell v. Department of Social Services of the City of
New York
,
1. Cook County
As a threshold matter, Plaintiff seeks to hold Cook County liable under
Monell
based upon its purported policies, practices, and customs that led to her alleged
constitutional deprivations in this case. But in Illinois, the Cook County Sheriff’s
Office bears the responsibility to appoint and hire deputies and act as custodian of
the county courthouse.
Askew v. Sheriff of Cook Cty., Ill.
,
In light of the foregoing, this Court dismisses all substantive claims against
Cook County. But Cook County remains a necessary party to this for one reason:
under Illinois law, it must indemnify the Cook County Sheriff’s Office for any official
capacity claims.
Carver v. Sheriff of LaSalle Cty., Illinois
,
2. Cook County Sheriff’s Office This Court turns now to Plaintiff’s Monell claims against the Cook County Sheriff’s Office and Sheriff Dart.
As a preliminary matter, Plaintiff attempts to sue Dart in both his official and individual capacities. Although, as discussed below, Plaintiff’s individual capacity claim against Dart must be dismissed, her official capacity claim against Dart is really a claim against the Cook County Sheriff’s Office itself. An “official capacity suit is another way of pleading an action against an entity of which the officer is an agent.” Sow v. Fortville Police Dep’t , 636 F.3d 293, 300 (7th Cir. 2011); Bertha v. Hain , No. 18-3286, 2019 WL 4458390, at *3 (7th Cir. Sept. 18, 2019) (“The claims *12 against the Sheriffs in their official capacities are really against the Kane County Sheriff’s Office.”).
Generally, municipalities do not face Section 1983 liability unless a plaintiff
can show that she suffered injuries of a constitutional magnitude as the result of an
official custom, policy, or practice.
Monell
,
Plaintiff sufficiently pleads her
Monell
claim against the Cook County Sheriff’s
Office based upon a widespread policy theory. As discussed above, the SAC plausibly
alleges that Plaintiff suffered a constitutional deprivation when Defendants arrested
her without probable cause and because she was exercising her First Amendment
rights.
See generally
[34]. It further alleges that Defendant Milazzo claims the arrest
occurred pursuant to a policy to detain with handcuffs individuals taking pictures in
or around the courthouse if they refuse to identify themselves, and that both
Defendant Milazzo and Defendant Larson claim this policy has been in place “since
the 9/11 terror attacks.”
Id
. ¶¶ 79, 91. Plaintiff also alleges that a chief deputy
specifically told Defendant Milazzo of this policy.
Id
. ¶ 80. Taking these allegations
*13
as true, this Court finds plausible that an express policy existed, leading to Plaintiff’s
detention.
Calhoun v. Ramsey
,
Plaintiff alternatively alleges that Cook County “failed to properly train its
police officers on the proper standard for initiating an investigation of a criminal
suspect, how to seize their property, and how to preserve their property unless and/or
until an order to destroy such property is entered by a court of competent
jurisdiction.” [34] ¶ 195. The Cook County Sheriff’s Office’s failure to train and
supervise constitutes a policy or custom if it amounts to “deliberate indifference to
the rights of persons with whom the [untrained employees] come into contact.”
Connick v. Thompson
,
Here, Plaintiff claims that the Cook County Sheriff’s Office did not properly train or supervise its deputies, pointing specifically to Milazzo’s incorrect statement that a “judicial order” prohibits citizens from filming outside a courthouse. [34] ¶ 193. Plaintiff also asserts that the Cook County Sheriff’s Office failed to sufficiently train its deputies on the proper method for detaining and searching belongings. Id. ¶ 195. At this stage, this Court finds sufficient factual content to infer that Plaintiff’s *14 alleged constitutional deprivations stemmed from the Sheriff’s Office’s failure to train and supervise its deputies.
For these reasons, this Court denies Defendants’ motion to dismiss the
Monell
claims to the extent Plaintiff alleges those claims against: (1) Sheriff Dart, in his
official capacity; and (2) the Cook County Sheriff’s Office. This Court, however,
dismisses Dart and the Cook County Sheriff’s Office from Counts I through VII, as
municipalities may not be liable under Section 1983 based upon respondeat superior
or vicarious liability.
Jenkins v. Bartlett
,
Individual liability under Section 1983 requires personal involvement in the
alleged constitutional violation.
Colbert v. City of Chicago
,
IV. Conclusion
For the reasons explained above, this Court grants in part and denies in part Defendants’ motion to dismiss [62]. Count VIII is dismissed in its entirety with prejudice. Defendant Dart is dismissed to the extent Plaintiff alleges any claims against him in his individual capacity. In addition, all substantive claims against Defendant Cook County are dismissed, though that Defendant remains as a necessary party solely for indemnification purposes.
Dated: February 14, 2020
Entered:
_________________________________ John Robert Blakey United States District Judge
Notes
[1] This Court takes these facts from Plaintiff’s second amended complaint [34].