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. ,
A. At the Scene
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
B. At the Police Station
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.
C. The Investigation
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.
1. Mr. Koh's First Interview
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.
2. Mrs. Koh's Interview
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; Exh. 121, 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
4. Mr. Koh's Second Interview
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
D. Criminal Proceedings
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.
II. Standard of Review
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. ,
III. Analysis
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. ----,
The Kohs also bring a few state-law claims. Count Six is a malicious prosecution
A. Conspiracy and Failure to Intervene
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.
B. False Arrest
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.
1. Timing of the Arrest
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 ,
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 ,
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 ,
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 ,
[W]hether the encounter occurred in a public or private place; whether the suspect was informed that he was not under arrest and free to leave; whether the suspect consented or refused to talk to the investigating officers; whether the investigating officers removed the suspect to another area; whether there was physical touching, display of weapons, or other threatening conduct; and whether the suspect eventually departed the area without hindrance.
Scheets ,
2. Probable Cause
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 ,
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.
a. Mr. 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 ,
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. ,
b. Mrs. Koh
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 ,
c. Officer Kim
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
C. Involuntary Confession
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 ,
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 ,
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 interrogation, 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,
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 ,
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 ,
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.
D. Evidence Fabrication
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,
E. Malicious Prosecution and Pretrial Detention
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
F. Municipal Liability
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 ,
1. General Order 15.14
Section 15.14, Paragraph 4, of the NPD General Orders outlines department protocols for managing and communicating with witnesses at crime scenes:
Unusual Occurrences, Major Crimes Response Protocol:
4. Witnesses
a. Always use tact when dealing with citizens/witnesses at crime scenes
i. Some may be potential witnesses with valuable information
ii. Secure and Separate all witnesses
a) Get names, addresses and telephone numbers
b) Arrange transportation to the station
c) Do not release them until they have been interviewed.
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 ,
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;
2. Chief Wernick
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 ,
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
G. Loss of Consortium
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 ,
Neither party has briefed whether a state-law loss of consortium claim can arise out of a constitutional claim.
IV. Conclusion
For the reasons discussed, the following claims survive and may go to trial:
• The Kohs' Fourth Amendment false arrest claims against the Northbrook Defendants (Count One), although Mr. Koh's claim ends when officers had probable cause before his second interview.
• Mr. Koh's Fifth Amendment coerced confession claim (Count Two).
• Conspiracy and Failure to Intervene (Counts Three and Five), except as described in the Opinion, and with the warning that, at trial, some Defendants almost surely will not be subject to these claims.
• Municipal liability against Northbrook (Count Four) for false arrest.
• Mrs. Koh's loss of consortium claim (Count Eight).
• Respondeat superior and indemnification against Northbrook and Wheeling (Counts Nine and Ten) remain intact insofar as the underlying claims do.
Summary judgment is granted to Defendants on the remaining claims:
• Mr. Koh's state-law malicious prosecution claim (Count Six).
• Mr. Koh's substantive due process claim based on his coerced confession (Count Two).
• Mr. Koh's due process evidence fabrication claim (Count Six).
• Mr. Koh's Fourth Amendment claim based on his pretrial detention.
Notes
This Court has subject matter jurisdiction under
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.
Citations to the record filings are "R." followed by the docket number and, when necessary, a page or paragraph number. Citations to the parties' Local Rule 56.1 Statements of Fact are "WDSOF" (for the Wheeling Defendants' Statement of Facts) [R. 276]; "NDSOF" (for the Northbrook Defendants' Statement of Facts) [R. 280]; "PSOF" (for the Kohs' Statement of Additional Facts) [R. 315]; "Pls.' Resp. WDSOF" (for the Kohs' Response to the Wheeling Defendants' Statement of Facts) [R. 309]; "Pls.' Resp. NDSOF" (for the Kohs' Response to the Northbrook Defendants' Statement of Facts) [R. 311]; "Wheeling Defs.' Resp. PSOF (for the Wheeling Defendants' Response to the Kohs' Statement of Additional Facts) [R. 323]; and "Northbrook Defs.' Resp. PSOF (for the Northbrook Defendants' Response to the Kohs' Statement of Additional Facts) [R. 328].
After briefing on the original summary judgment motions (R. 274 and R. 278) was complete, both sides moved to add additional authority. The Kohs' additional authority, Manuel v. City of Joliet , --- U.S. ----,
The exhibits to the parties' Rule 56.1 statements of fact are numbered sequentially. Exhibits 1-104 are attached to the Northbrook Defendants' Statement of Facts [R. 280], Exhibits 105-107 are attached to the Wheeling Defendants' Statement of Facts [R. 276], and Exhibits 108-184 are attached to the Plaintiffs' Statement of Facts [R. 315]. Exhibits 185-186 are attached to the Plaintiffs' Response to the Wheeling Defendants' Statement of Facts [R. 309], Exhibit 187 is attached to the Northbrook Defendants' reply brief [R. 329], and Exhibits 188-189 are attached to the Northbrook Defendants' Response to the Plaintiff's Statement of Facts [R. 328].
The parties dispute how long the Kohs remained together in the conference room before Mr. Koh's first interview. All of the defendants maintain that the Kohs were together that morning until Mr. Koh was interviewed; the Kohs assert that they were separated after just 5 to 10 minutes together. Compare NDSOF ¶ 44 ("The Kohs remained in the investigative conference room until Mr. Koh was interviewed.... [T]he Kohs were huddled together under a blanket, conversed in Korean and the television (with volume) was on."); R. 276, WDSOF ¶¶ 10-11 (When Officer Kim arrived around 6:00 a.m., he observed Mrs. and Mr. Koh "covered in a blanket and talking in Korean"); Exh. 9, Johnson Dep. Tr. 89:20-90:8 ("We were in there for quite some time."); R. 284-12, Exh. 34, Ochab Dep. Tr. 49:1-8 (Officer Ochab was with the Kohs in the conference room for "an hour, two hours"), with Pls.' Resp. NDSOF ¶ 44 ("The Kohs were separated after approximately 5-10 minutes; they did not talk to each other, and they weren't huddled together under a blanket speaking Korean to each other."); R. 288-3, Exh. 83, May 11, 2010 Pretrial Hr'g Tr. 96:12-22 ("Q: Isn't it true ... that it was more like three hours that you were together with your husband in that conference room? / A: Not that long, no. / Q: You're claiming it was more like five to ten minutes? / A: That's how I recall."). But see R. 284-15, Exh. 37, Eunsook Koh Dep. Tr. 248:20-22 (Mrs. Koh acknowledges that the police separated her from her husband after about three hours).
Though the Kohs did not notify the officers that they needed help in reading or understanding English, see NDSOF ¶ 39; Exh. 17, Hyung Seok Koh Dep. Tr. 398:24-399:3, officers who interacted with the Kohs recognized that there was a language barrier, PSOF ¶ 14; Exh. 34, Ochab Dep. Tr. 7:11-16 (noting that Mr. Koh's 911 call "was coming as also a language barrier").
The Wheeling Defendants maintain that "[t]hroughout Mr. Koh's interview ... Mr. Koh never mentioned any need for medication or other provisions in the presence of Officer Kim." WDSOF ¶ 32; R. 284-17, Exh. 39, Kim Dep. Tr. 131:4-22. (Q: Why are you sure that he would tell you within hours of his son's death that he needed medication? / A: Well, if it's medication, you need to take it regularly, I mean."); but see R. 309, Pls,' Resp. WDSOF ¶ 32.
It does seem that Mr. Koh was eventually given his medications, but only after the end of his second interview, when it became clear that he was going to be detained indefinitely. See R. 285-2, Exh. 43, July 15, 2010 Pretrial Hr'g Tr. 72:17-73:13. According to Graf, this was the first and only time that Mr. Koh asked for his medications. See id. at 73:14-16. But Graf's version conflicts with Mr. Koh's testimony that he asked for his medications before the first interview, and at this stage the Court must take Mr. Koh's word as true.
The Northbrook Defendants rely on a transcript of Mr. Koh's videotaped interviews to support their summary judgment motion. See R. 285-3, Exh. 44, Hyung Seok Koh Interview Tr. Though the Kohs "do not stipulate to the accuracy of the entire transcript, [they] admit that its use at summary judgment is generally helpful and appropriate ...." Pls.' Resp. NDSOF ¶ 54. Because the parties agree to use the transcript at this stage in the proceedings, the Court will rely on it in deciding the motions.
The Kohs rely on a transcript of Mrs. Koh's videotaped interview to support their Response to the Defendants' summary judgment motions. See R. 308-14, Exh. 121, Eunsook Koh Interview Tr. Like the transcript of Mr. Koh's interviews, the Court will also rely on this transcript in deciding the summary judgment motions.
It is a little unclear whether this was one meeting or multiple meetings, see Exh. 36, Graf Dep. Tr. 92:9-92:20; Exh. 40, Ustich Dep. 84:21-85:4, but that detail does not matter to the summary judgment analysis. For the sake of simplicity, the Court adopts the Kohs' assertion that there were multiple meetings. See PSOF ¶ 26.
There are two videotapes of the second interview, labeled "Video of Hyung Seok Koh Interview 2" and "Video of Hyung Seok Koh Interview 3." The tape labeled "Video of Hyung Seok Koh Interview 1" is the recording of Mr. Koh's first interview.
Two of the Kohs' family members reached out to Shim for assistance earlier that morning once they realized that Mr. Koh was a suspect. PSOF ¶¶ 25, 40. Shim called the Northbrook Police Department to tell them he was Mr. Koh's attorney before arriving at the station. Id. ¶ 40. Once at the station, Shim had to wait twenty minutes before he was able to meet with Officer Dunham and go back to the interview room to see Mr. Koh. Id. ¶ 41.
Mr. Koh's inculpatory statements were ambiguous. See Exh. 44, Hyung Seok Koh Interview Tr. at 144-45. ("Q: Did you cut his-/ A: Oh, yeah. / Q: Did you cut his throat? / A:. Maybe, maybe it's-/ Q: Not maybe, what happened? / A: I grab-okay." "Q: Was he in front-and then you went like this and you cut his neck (indicating)? / A: Yeah. / Q: Is that what you did, did you cut his neck? / A: But I'm not clear in my mind.").
In their response to the Wheeling Defendants' Statement of Facts, the Kohs deny the Wheeling Defendants' statement that "Officer Kim was involved in no meetings with any NORTAF or Northbrook Police Officer[s] regarding the status of the investigation of Paul Koh" on the grounds that "Officer Kim had [ ] interactions with Northbrook police officers in connection with the death investigation of Paul Koh." See Pls.' Resp. WDSOF ¶ 18. But even if Kim was involved in some meetings or conversations with NORTAF or Northbrook officers during the investigation, there is no evidence that Kim was at the meetings that took place between Mr. Koh's two interviews, or the meeting after the second interview.
It is unclear how much of the videotapes Albanese reviewed that day. PSOF ¶ 63; Northbrook Defs.' Resp. PSOF ¶ 63; R. 308-50, Exh. 157, Felony Review Folder; R. 308-17, Exh. 124, Abanese Dep. Tr. 28:12-16 ("Q: Do you recall at all like how long the part or parts that you watched? / A: I don't recall if it was a part or the entire video.").
Although the Second Amended Complaint treated the evidence fabrication as part of the malicious prosecution claim, see Second Am. Compl. ¶ 73, the Kohs now argue that the fabrications also violated Mr. Koh's federal constitutional right to due process. See Pls.' Resp. Br. at 50. Both versions of the evidence fabrication claim are addressed below. See Parts III.D and III.E, below.
The Court already dismissed the Kohs' intentional infliction of emotional distress claim as untimely filed. See R. 82, Mot. to Dismiss Order at 13-16.
This was the First Amended Complaint, but the Second Amended Complaint made similar allegations.
Northbrook argues in its Reply that its Rule 56.1 Statement of Facts provides adequate notice of the grounds for its motion for summary judgment on the conspiracy and failure to intervene claims. Northbrook Defs.' Reply Br. at 36. Northbrook's Statement of Facts does set forth Northbrook's version of the facts of the case in detail. But even with the facts laid out clearly, Northbrook is still asking the Court and the Plaintiffs to guess which defendants Northbrook believes are entitled to summary judgment and on what claims.
The Kohs also asserted strip-search claims, arguably as free-standing independent claims. See Second Am. Compl. ¶ 50. They did not, however, respond to the part of the Northbrook Defendants' motion seeking summary judgment on those claims. See Northbrook Defs.' Br. at 25-28; see also NDSOF ¶¶ 98-105. So those claims are waived and summary judgment is granted against them. See Sentinel Ins. Co. v. Serra Int'l ,
Although this denial might have been prompted by the officers' subjective desire to preserve evidence at the crime scene, the officers' subjective intentions do not matter. Carlson ,
Johnson denies that the Kohs asked to go to the hospital, see Exh. 9, Johnson Dep. Tr. 71:24-72:3, but at this stage, the Court must believe the Kohs over Johnson.
Johnson believes he arrived at the scene around 3:45 a.m., and that he took the Kohs to the station around twenty minutes later. See Exh. 9, Johnson Dep. Tr. 44:3-10, 83:8-14. It took only three or four minutes to drive to the station, id. at 76:19-21, meaning the Kohs must have arrived at the station around 4:00 a.m. Officer Meents noted that the weather that day was cold, but not freezing. Exh. 7, Meents Dep. Tr. 58:19-20. See also NDSOF ¶ 22 ("Johnson transported the Kohs to the Northbrook Police Department ... because it was dark outside [and] extremely cold.")
The Kohs admit that Officer Wasowicz observed the metal cross covered in blood when he investigated the Kohs' house that morning. See Pls.' Resp. NDSOF ¶ 30. The observation does not appear in Officer Wasowicz's contemporaneous field notes, see R. 339, Wasowicz Field Notes, NB 171-747, but the fact is undisputed.
The Kohs' experts opine that Paul's death was, in fact, suicide. See R. 308-16, Exh. 123, Dr. Laposata Trial Tr. 55:17-22; PSOF Exh. 138, Moses Dep. Tr. 99:21-25. But the question for probable cause is not whether Paul's death was actually a suicide; the issue is what information the officers had, and whether they were reasonably entitled to rely on it. In this case, Graf, Ustich, and the other investigators were entitled to rely on the opinions of the NORTAF forensic investigators, even if those opinions turned out to be wrong.
One of the "expectations" that Paul had to abide by under the Koh Family Agreement related to Paul's drug usage: "I understand that there is NO tolerance in regards to smoking and drugs in the house. A random drug test will be conducted by my parents." R. 286-1, Exh. 49, Koh Family Agreement. Investigators learned from Paul's friend Neil Schnitzler the morning after Paul died that Paul had smoked marijuana the night before. NDSOF ¶ 71; R. 286-4, Exh. 51, Mazurkiewicz Aff.; R. 286-5, Exh. 51A, Mazurkiewicz Aff. Exh. A.
As discussed in Part III.A above, the Northbrook Defendants have not made clear which of them should be off the hook for which conspiracy and failure to intervene claims, so summary judgment is not granted to any of them on this claim. The Court does have significant questions about whether any of the Defendants except Meents, Johnson, Eisen, and possibly Celia could be liable for the initial false arrest, and about when the responsibility of those initial arresting officers must cut off. There are also individual defendants who do not seem to have been involved in the false arrest and detention in any way. But again, Northbrook has not made these arguments.
It is undisputed, however, that before Mr. Koh's second interview, Detective Graf offered him food, coffee, and water. NDSOF ¶ 80; R. 285-3, Exh. 44, Hyung Seok Koh Interview Tr. 58.
Mr. Koh's attorney also observed that upon entering the interview room, he found Mr. Koh disoriented, disheveled, and tired. PSOF ¶ 43; R. 308-41, Exh. 148, Shim Dep. Tr. 69:4-16.
For example: "Q. Tell us what happened. / A. I can't I can't remember that one." "Q. Did he come after you? Did he have a knife, did he have a knife, did he have a knife and come after you? / A. No." "Q. Hyungseok, who had the knife? / A. I don't know." Exh. 44, Koh Interview Tr. at 132-33.
Nevertheless, Detective Graf accused Mr. Koh of lying about his inability to understand questions posed to him throughout the interview. See R. 285-3, Exh. 44, Hyung Seok Koh Interview Tr. 106, 117-18, 132; see also PSOF ¶ 36; Northbrook Defs.' Resp. PSOF ¶ 36.
The Wheeling Defendants assert that "there is no Section 1983 cause of action available to Mr. Koh for any actual failure to inform Mr. Koh of his Miranda rights." R. 330, Wheeling Defs.' Reply Br. at 4. But Mr. Koh is not asserting that Officer Kim violated his constitutional rights on the basis that Officer Kim failed to properly translate the Miranda warnings. Rather, he is asserting that Officer Kim's mistranslation of Miranda is a relevant consideration in determining whether his confession was voluntary, which it is. See Brooks ,
It is true that "the law permits the police to pressure and cajole, conceal material facts, and actively mislead-all up to limits ...." United States v. Rutledge ,
See also, e.g. , Grayson v. City of Aurora ,
There is also enough evidence for a jury to find against both Kim and Ustich on Mr. Koh's conspiracy claim, as well as sufficient evidence for a jury to find that Kim and Ustich failed to intervene while Detective Graf coerced Mr. Koh into confessing. (Given that Detective Graf was the lead interrogator, a failure to intervene claim against him does not make sense.) So even if Kim and Ustich are not directly liable for participating in Mr. Koh's interrogation-though each did ask Mr. Koh their own questions, see Exh. 42, Video of Hyung Seok Koh Interview 1 00:44:50-00:55:01; Exh. 57, Video of Hyung Seok Koh Interview 3 at 00:18:28-00:19:27-they are liable for either conspiracy or failure to intervene.
Mr. Koh's confusion was obvious at crucial points in the interview. For example, when Graf had ostensibly gotten Mr. Koh to admit that he killed Paul in self-defense, follow-up questions made it clear that Mr. Koh might have been talking about a completely different incident. Apparently, a few weeks before Paul's death, Paul had swung a golf club at Mr. Koh, and this might have been what Mr. Koh was talking about during the self-defense back-and-forth. Exh. 44, Hyung Seok Koh Interview Tr. 136-37 ("Q: Tell me why you did it, Hyungseok. / A: Weeks, weeks ago. / Q: Weeks ago? / A: He golf-/ Q: He took a golf club? / A: (inaudible) / Q: He hit you with a golf club? / A: Yeah.").
The Northbrook Defendants make two additional arguments that they assert warrant applying qualified immunity. First, they point to the fact that the state court judge in Mr. Koh's criminal case already determined that Mr. Koh's statements were voluntary. See Northbrook Defs.' Br. at 22-24. Second, they argue that the state court judge's decision to admit the confession is an "independent, superseding cause of any alleged violation of Mr. Koh's [constitutional] rights ...." Id. at 24-25. The first argument fails. It is unclear whether the state court judge considered the same evidence at the suppression hearing that is currently before this Court on the Kohs' involuntary confession claim. And even if the state court judge had considered the same evidence, the evidentiary picture would have been different due to the procedural posture of this case. On a motion for summary judgment, the Court is required to credit the non-moving party's evidence and make all reasonable inferences in their favor. The state court judge, on the other hand, was free to make credibility judgments, weigh the evidence, and find facts, and did so. See, e.g. , R. 291-2, Exh. 97, J. Howard Oral Ruling on Mot. Suppress at 3:12-13 (describing the tenor of Mr. Koh's interview as "low-key and very cordial"), 3:19-24 (finding that Mr. Koh had "a very good command of the English language"), 4:21-24 (finding the Kohs' expert witness unpersuasive). The second argument fails too-"qualified immunity is a doctrine designed to respond to legal uncertainty, but causation (a factual matter) has nothing to do with legal uncertainty." Dominguez v. Hendley ,
In the Second Amended Complaint, the Kohs alleged that "[a]t the conclusion of the interrogation, the Defendant Officers fabricated a statement and falsely attributed it to Plaintiff, and then communicated the same to members of the Cook County State's Attorney's Office orally and in writing. Defendant Graf also testified falsely on this subject before the Grand Jury." Second Am. Compl. ¶ 40. The Northbrook Defendants did not specifically move for summary judgment on the Kohs' fabrication of evidence claim, and indeed maintain that those allegations are insufficient to advance such a claim. See Northbrook Defs.' Mot. Summ. J.; Northbrook Defs.' Br.; Northbrook Defs.' Reply Br. at 4-5. But those allegations are enough to plausibly allege a fabrication-of-evidence claim and to place the Defendants on notice that the Kohs were making that claim. What's more, discovery in this case would have been no different with or without these specific fabrication-of-evidence allegations. So, the claim is in.
If Mr. Koh is arguing that the confession's falsity was obvious because of the coercive nature of the interrogation, that line of argument is foreclosed by Seventh Circuit precedent. In Petty v. City of Chicago , the plaintiff alleged that police officers coerced a witness into giving false evidence by holding the witness in a locked room without food, water, or bathroom access for over 13 hours, and badgering and pressuring the witness until he incriminated the plaintiff.
This phrase is sometimes rendered as "gachi jookja," see, e.g. , Yoon Dep. Tr. 48:6-49:12, 54:12-57:8, but the meaning is the same.
For example, in Hurt , a suspect told police that he had dumped a body in the river, then stopped at a convenience store to buy snacks.
That makes this case different from Jones , where a forensic examiner's omission of relevant evidence was clearly designed to mislead prosecutors. In Jones , a police laboratory technician discovered physical evidence that would have exonerated the defendant, but omitted this information from her lab report. Jones ,
The Northbrook defendants dispute this, see Northbrook Defs.' Resp. PSOF ¶ 67, but the dispute does not matter. The Kohs' argument fails even if the Court accepts their version of events.
Schnitzler's first statement to the police was late morning on the day of Paul's death, April 16, 2009. See NDSOF Exh. 75, Schnitzler Dep. Tr. 186:6-187:5. Schnitzler's next statement was given on May 2, 2009, after he was arrested for possession of marijuana. See id. at 199:20-200:3. Schnitzler's last statement was made during a phone call with Detective Graf on May 27, 2009. See id. at 216:10-20.
Defendants argue that the Kohs did not properly plead or pursue a Fourth Amendment claim stemming from Mr. Koh's extended pretrial detention; the Kohs disagree. See R. 362, Defs' Joint Mot. Summ. J at 4-5; R. 363, Pl. Resp. Defs.' Joint Mot. Summ. J. at 1. The Court need not resolve this dispute because the claim fails on the merits.
Some of this information might have been available even before Mr. Koh's second interview, but it is not clear how long it took for it to filter through to Graf, Wernick, and the other relevant defendants.
Indeed, every officer is given a copy of the NPD's General Orders; supervisors review those orders with officers; and officers must attest to the fact that they have read and understand those orders. See R. 308-8, Exh. 115, Caruso Dep. Tr. 25:17-24; R. 284-1, Exh. 25, Wernick Dep. Tr. 169:5-23.
Chief Wernick has even testified that it was perfectly lawful to detain and investigate the Kohs just because they were the only two people in the house when Paul died. See R. 284-1, Exh. 25, Wernick Dep. Tr. 23:11-24:19 ("Q: So, anybody who is present in the home where a homicide takes place can be arrested for a felony; is that correct? ... / A: If there are only two people in the house, well, we're going to bring them both in where a homicide occurred."); id. 24:24-28:11 ("Q: What did Mrs. Koh do that you believe was enough to have her arrested for a felony / A: She was present when a homicide occurred.... Q: And based on your understanding of the Illinois statutes, that was enough for an arrest; is that correct? ... / A: We brought her in with her husband, and we had her in the station until we could figure out what happened."). This course of action is precisely what Section 15.14 instructs Northbrook officers to do, but it does not square with the Fourth Amendment in this case, absent probable cause that the Kohs committed a crime.
The Second Amended Complaint states that in addition to "ratif[ying] and authoriz[ing] the[ir] unlawful detentions ... as well as the coercive interrogation of [Mr. Koh]," Chief Wernick also "ratified and authorized ... strip searches of [the Kohs]." See Second Am. Compl. ¶ 65. But the Kohs do not address the strip search issue in their response brief, see Pls.' Resp. Br., so the Court will treat that portion of their Monell claim as withdrawn.
As opposed to the theory that a spouse has an independent constitutional consortium claim arising out of violations of her spouse's rights. See Russ v. Watts,