Rachel Ybarra v. City of Chicago ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1435
RACHEL YBARRA, as Special Administrator of the Estate of
RAFAEL CRUZ, deceased,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cv-08009 — Virginia M. Kendall, Judge.
____________________
ARGUED DECEMBER 4, 2019 — DECIDED JANUARY 3, 2020
____________________
Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Rachel Ybarra brought a lawsuit
against the City of Chicago and Chicago Police Department
Commander Francis Valadez and Officer Monica Reyes for
excessive force and wrongful death based on the shooting
death of her son, Rafael Cruz. The district court entered sum-
mary judgment for the defendants, holding that the officers
could have reasonably believed, based on Cruz’s involvement
2 No. 19-1435
in a drive-by shooting and extremely reckless driving, that
Cruz posed an imminent threat to others if allowed to escape
from the parking lot where they shot him.
We affirm. Under the circumstances present in this case,
the officers had probable cause to believe that Cruz posed a
threat of serious physical harm to others in the immediate vi-
cinity. It was therefore not unreasonable for the officers to pre-
vent Cruz’s escape by using deadly force.
I. Background
During the early hours of August 29, 2015, Chicago Police
Department Commander Francis Valadez and Officer Monica
Reyes (collectively, “the officers”) were in an unmarked po-
lice car patrolling a neighborhood where a gang-related
shooting had recently occurred. At approximately 1:30 a.m.,
the officers saw a rear passenger in Rafael Cruz’s Chevy Ta-
hoe fire five gunshots at the occupants of another car. Imme-
diately after the shooting, Cruz drove away, reaching speeds
of 40 to 70 miles per hour in a 30-miles-per-hour zone. Reyes
called in an emergency, reporting “shots fired” over the police
radio. Valadez was driving and followed Cruz’s Tahoe, which
had dark, tinted windows. The officers followed Cruz’s Tahoe
through city streets for approximately one mile but did not
activate any emergency lights or sirens on their vehicle.
With the unmarked police car still following him, Cruz
turned westbound and struck a parked car on the north side
of the street with enough force that it pushed the car forward
into a second car parked roughly a car-length in front of it,
causing the second car to roll into a third. Despite that colli-
sion, Cruz kept driving before crashing into a fourth car on
No. 19-1435 3
the south side of the street and coming to a stop near the en-
trance of a parking lot.
At that point, the officers parked their car behind Cruz’s
Tahoe, believing that it had stalled due to the damage it had
sustained during the collisions. Valadez then began getting
out of the car while announcing that he was a police officer.
Almost simultaneously, Cruz put his Tahoe into reverse, forc-
ing Valadez back into his car just before the back of the Tahoe
struck the driver’s side of the car. The collision forced the
open driver’s side door closed and caused the officers’ “whole
car” to “rock[].” Reyes thought that Valadez had been hit by
the Tahoe and was concerned that he may have been severely
injured in the seconds following the collision. Cruz then
pulled forward and turned left into the parking lot.
The officers followed Cruz into the parking lot on foot,
wearing plain clothes, duty belts, and bulletproof police vests
that displayed their police star. Valadez ran to the south side
of the parking lot, while Reyes positioned herself behind a
parked car near the parking lot’s entrance. Valadez testified
that he shouted “police” while running into the parking lot.
The parking lot was “pretty well lit” by lights in the lot and at
the adjacent intersection. One of Cruz’s passengers, Pasqual
Nava, testified that he knew that Valadez was a police officer
because he could see Valadez’s vest. Reyes also yelled several
times to “stop the vehicle” and “stop it.” Two of Cruz’s pas-
sengers, Jose Cabello and Pasqual Nava, did not hear Valadez
or Reyes say anything.
Cruz did not stop and instead made a three-point turn
back toward the parking lot’s entrance, which was the only
path for vehicles to enter or exit the parking lot. The head-
lights of Cruz’s Tahoe shone directly at Valadez and then at
4 No. 19-1435
Reyes as Cruz completed his three-point turn and pulled for-
ward. Valadez initially stated that as the Tahoe began driving
forward, he saw the driver’s window being lowered two to
three inches and believed that Cruz was about to begin shoot-
ing at him. Video footage, however, showed that the window
may have already been rolled down before Cruz’s Tahoe en-
tered the parking lot.
As Cruz began driving forward, Valadez fired three shots
at Cruz, and Reyes immediately thereafter fired five addi-
tional shots at him. The officers continued shooting after the
Tahoe had driven past Reyes. Reyes testified that she could
see Cruz’s profile as he drove past her. Reyes called out over
the radio, “Shots fired by police, shots fired by police.” Cruz
died as a result of a gunshot wound.
Approximately ninety seconds elapsed from the time the
initial shots were fired from Cruz’s Tahoe until Cruz was
shot, roughly sixteen of which elapsed during the encounter
in the parking lot. Surveillance footage shows that pedestri-
ans, cyclists, and other vehicles were in the area within twenty
minutes of the incident.
Ybarra, Cruz’s mother and administrator for his estate,
filed suit, bringing claims against the officers for excessive
force under 42 U.S.C. § 1983 and against the officers and the
City of Chicago for wrongful death under Illinois law. The
district court entered summary judgment for the defendants,
holding that although there was a fact dispute as to whether
the officers had acted reasonably in self-defense, they had
acted reasonably in using deadly force against Cruz to protect
others in the immediate vicinity by preventing his escape.
Ybarra now appeals.
No. 19-1435 5
II. Discussion
Construing all factual disputes and drawing all reasonable
inferences in favor of Ybarra, we review de novo the district
court’s entry of summary judgment for the defendants. Palmer
v. Franz, 928 F.3d 560, 563 (7th Cir. 2019). The defendants are
entitled to summary judgment only if they have shown “that
there is no genuine dispute as to any material fact” and that
they are “entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
We conclude that the officers’ use of deadly force against
Cruz was an objectively reasonable means to prevent the es-
cape of armed and dangerous suspects who were driving
with reckless disregard for the safety of others after firing
gunshots at the occupants of another car moments earlier. “A
police officer’s use of deadly force on a suspect is a seizure
within the meaning of the Fourth Amendment, so the force
must be reasonable to be constitutional.” Horton v. Pobjecky,
883 F.3d 941, 948 (7th Cir. 2018). A suspect has a constitutional
right not to be shot by an officer unless the officer “reasonably
believes that the suspect poses a threat to the officer or some-
one else.” Id. at 949 (citation and brackets omitted).
When an officer reasonably believes an assail-
ant’s actions place him, his partner, or those in
the immediate vicinity in imminent danger of
death or serious bodily injury, the officer can
reasonably exercise the use of deadly force. An
officer does not violate the Fourth Amendment
by firing at a suspect when the officer reasona-
bly believed that the suspect had committed a
felony involving the threat of deadly force, was
armed with a deadly weapon, and was likely to
6 No. 19-1435
pose a danger of serious harm to others if not
immediately apprehended.
Id. (internal quotation marks and citations omitted). Under
some circumstances, a police officer may therefore use deadly
force as a reasonable means to prevent a suspect’s escape.
Where the officer has probable cause to believe
that the suspect poses a threat of serious physi-
cal harm, either to the officer or to others, it is
not constitutionally unreasonable to prevent es-
cape by using deadly force. Thus, if the suspect
threatens the officer with a weapon or there is
probable cause to believe that he has committed
a crime involving the infliction or threatened in-
fliction of serious physical harm, deadly force
may be used if necessary to prevent escape, and
if, where feasible, some warning has been given.
Id. (quoting Tennessee v. Garner, 471 U.S. 1, 11–12 (1985).
Application of the reasonableness test “requires careful at-
tention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the sus-
pect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempt-
ing to evade arrest by flight.” Graham v. Connor, 490 U.S. 386,
396 (1989). “The ‘reasonableness’ of a particular use of force
must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.”
Id. “The calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncer-
tain, and rapidly evolving—about the amount of force that is
No. 19-1435 7
necessary in a particular situation.” Id. at 396–97; see also Hor-
ton, 883 F.3d at 950 (reasonableness test requires considering
“the pressures of time and duress, and the need to make split-
second decisions under intense, dangerous, uncertain, and
rapidly changing circumstances”). Unlike the court, the offic-
ers “lacked [the] luxury of pausing, rewinding, and playing
the videos [of the incident] over and over.” Horton, 883 F.3d
at 950.
“[O]utrageously reckless driving” that “pose[s] a grave
public safety risk” can be enough to justify the use of deadly
force under some circumstances. Plumhoff v. Rickard, 572 U.S.
765, 777 (2014) (reversing denial of summary judgment for of-
ficers who shot at fleeing suspect to end car chase); see also
Scott v. Edinburg, 346 F.3d 752, 758–61 (7th Cir. 2003) (affirm-
ing summary judgment for defendants where officer shot at
fleeing suspect who had stolen car and put others in vicinity
at risk through dangerous driving). Here, there was more
than Cruz’s extremely reckless driving to support the officers’
conclusion that Cruz presented a grave public safety risk.
Cruz was not merely an impaired driver or someone driv-
ing away from a traffic ticket. After someone in his Tahoe
fired multiple shots at another vehicle, Cruz sped away
through city streets at roughly twice the speed limit, driving
for a mile before crashing into multiple cars. First, he careened
into a parked car with such force that it pushed the car for-
ward into a second car parked a full car-length in front of it,
which then rolled into a third. Despite the severity of that in-
itial collision, Cruz did not stop. Cruz kept driving and
crashed into a fourth car parked on the opposite side of the
street. Then, when Valadez parked behind Cruz’s Tahoe,
Cruz drove backward directly into the same car door from
8 No. 19-1435
which Valadez was attempting to exit. Cruz’s Tahoe crashed
into the unmarked police car with enough force that it
slammed Valadez’s door shut, caused the “whole car” to
“rock[],” and led Reyes to believe that Valadez may have been
seriously injured.
During the encounter in the parking lot moments later, the
officers reasonably believed that there was still at least one
gun in Cruz’s Tahoe, that Cruz could access it, and that all of
the suspects in the Tahoe might have been armed and danger-
ous. Cf. Horton, 883 F.3d at 952 (holding that officer reasona-
bly assumed decedent was armed because of decedent’s par-
ticipation in armed robbery). The situation was particularly
difficult given that the officers could not see into the Tahoe to
determine which occupant had the gun because the Tahoe
had dark, tinted windows. Cf. Ford v. Childers, 855 F.2d 1271,
1275 (7th Cir. 1988) (“Even though [the officer] did not actu-
ally see a weapon in the suspect’s hand (a post obstructed his
view of the suspect’s hand), given the information he pos-
sessed at that particular time and the observations he made,
[the officer] reasonably concluded that the suspect was armed
and dangerous.”). Moreover, only sixteen seconds elapsed
from when Valadez entered the parking lot (with Reyes trail-
ing by a few seconds) until the Tahoe exited the parking lot,
at which time Cruz had already been shot. Within that six-
teen-second window, the officers had mere seconds to deter-
mine how to respond, and that determination was informed
by the violent acts the officers had witnessed less than ninety
seconds previously.
Furthermore, it was reasonable for the officers to conclude
that Cruz would have known that they were police officers
rather than members of a rival gang. The officers entered the
No. 19-1435 9
parking lot, which was “pretty well lit” by lights in the park-
ing lot and at the adjacent intersection, wearing duty belts and
bulletproof vests that had their police star displayed on them.
Both officers had also been illuminated by Cruz’s headlights.
Indeed, Nava testified that he knew Valadez was a police of-
ficer because he could see his vest. Moreover, Valadez’s testi-
mony that he identified himself as a police officer when he
initially got out of his car (before it was struck by Cruz’s Ta-
hoe) is unrebutted.
The law requires that before using deadly force to prevent
escape, the officers must, “where feasible,” give “some warn-
ing.” Horton, 883 F.3d at 949 (quoting Garner, 471 U.S. at 11–
12). The undisputed facts show that such a warning was given
here. Nava testified that he was looking at Valadez immedi-
ately before Valadez began shooting, but that he never saw
Valadez’s mouth move and that Valadez “never said ‘stop,’
never said nothing.” Regardless of whether Valadez yelled to
“stop,” however, Reyes can be heard yelling at Cruz to “stop
the vehicle” in the audio recorded by her police radio. There
is no requirement that every officer on a scene shout duplica-
tive commands. To the extent that the passengers in Cruz’s
Tahoe could not hear the warnings, their testimony that they
“did not hear any warnings fails to present a question of ma-
terial fact as to whether the giving of the warnings was feasi-
ble and if in fact they were given.” Ford, 855 F.2d at 1276.
Thus, when Cruz failed to stop after Reyes yelled at him
to “stop the vehicle” but instead continued driving in Reyes’s
general direction toward the parking lot exit, the officers had
probable cause, based on Cruz’s involvement in the drive-by
shooting and his extremely reckless driving, to believe that
Cruz presented a threat of serious physical harm to others if
10 No. 19-1435
not immediately apprehended. Even though the encounter
occurred during the very early hours of the morning, surveil-
lance footage shows other pedestrians, cyclists, and motorists
in the area around the time of the shooting.
Regardless of whether the officers reasonably believed
that Cruz presented a direct threat to the officers’ own
safety—whether by driving toward or shooting at them—
there is no genuine dispute of material fact that the officers
acted reasonably in using deadly force against Cruz to pre-
vent his escape to protect others in the immediate vicinity. See
Scott, 346 F.3d at 759 (“[T]he threatened individuals need not
have been placed in the direct path of the threat. Deadly force
may be exercised if the suspect’s actions place the officer, his
partner, or those in the immediate vicinity in imminent danger
of death or serious bodily injury.” (citation and internal quo-
tation marks omitted)). Their use of deadly force to prevent
escape continued to be reasonable even as Cruz drove past
the officers. Cf. Horton, 883 F.3d at 952 (“Even if [a participant
in an armed robbery] had already crawled past [the officer], it
was still reasonable for [the officer] to shoot him in the back
to prevent escape.”).
For the same reasons that the officers’ use of deadly force
was not an unreasonable seizure under the Fourth Amend-
ment, their use of deadly force was justified under Illinois
law. See Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th
Cir. 2002) (“The same [reasonable use of deadly force] rule
applies to [plaintiff’s] wrongful death claim under Illinois
No. 19-1435 11
law.”).1 And under 745 Ill. Comp. Stat. 10/2-109, the City can-
not be held vicariously liable when its individual officers are
not liable. The defendants are therefore entitled to summary
judgment on both the § 1983 claim and the wrongful death
claim under Illinois law.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
1Under 720 Ill. Comp. Stat. 5/7-5, an officer is justified in the use of
deadly force in Illinois if:
[H]e reasonably believes that such force is necessary to
prevent death or great bodily harm to himself or such
other person, or when he reasonably believes both that:
(1) Such force is necessary to prevent the arrest
from being defeated by resistance or escape;
and
(2) The person to be arrested has committed or
attempted a forcible felony which involves
the infliction or threatened infliction of great
bodily harm or is attempting to escape by use
of a deadly weapon, or otherwise indicates
that he will endanger human life or inflict
great bodily harm unless arrested without
delay.
Moreover, the Illinois Tort Immunity Act provides that a “public em-
ployee is not liable for his act or omission in the execution or enforcement
of any law unless such act or omission constitutes willful and wanton con-
duct.” 745 Ill. Comp. Stat. 10/2-202. For the same reasons that the officers’
use of deadly force was reasonable as a matter of law, a jury could not
conclude that their use of deadly force was willful and wanton.
12 No. 19-1435
HAMILTON, Circuit Judge, concurring in the judgment. I
would affirm summary judgment on the narrower ground of
qualified immunity on plaintiff’s Fourth Amendment claim.
In briefing in this court, plaintiff effectively conceded that
qualified immunity is appropriate. She described this case as
straddling the “hazy border” between reasonable and unrea-
sonable force. Appellant’s Reply Br. at 6. I agree, and we could
and should stop there. See generally Pearson v. Callahan, 555
U.S. 223, 241 (2009), citing among others Ashwander v. TVA,
297 U.S. 288, 347 (1936) (Brandeis, J., concurring). I would not
make my colleagues’ further finding that the officers did not
violate the Fourth Amendment, particularly in light of the of-
ficers’ use of deadly force while driving an unmarked vehicle
and wearing plain clothes.
Driving the Tahoe when his passenger fired shots at an-
other car, Cruz then fled recklessly from the shooting and
from another car, the unmarked police car, that was chasing
him at night. Under Tennessee v. Garner, 471 U.S. 1, 11–12
(1985), the Fourth Amendment generally permits police to use
deadly force to prevent the escape of a suspect fleeing from
such a violent crime, with the proviso that a warning should
be given “if feasible.” We expect officers if feasible to give ci-
vilians a choice between surrender and death.
The extensive case law concerning police use of force, and
especially deadly force in police chases, almost always in-
volves uniformed police officers and clearly marked police
vehicles. Courts expect civilians to comply with police com-
mands and warnings and to respect the authority of the po-
lice. Those expectations do not necessarily apply to police of-
ficers who are out of uniform in unmarked vehicles, however
effective those tactics may be for particular police purposes.
No. 19-1435 13
The officers here were in plain clothes, not in uniform, and
they were driving an unmarked car. Never in the ninety-sec-
ond episode did the officers use the car’s hidden emergency
lights or sirens. In reviewing a grant of summary judgment,
we cannot assume Cruz knew he was being pursued by police
officers during the chase or even during the fatal confronta-
tion in the church parking lot. One passenger in Cruz’s car
recognized from their gear that the people on foot in the park-
ing lot were in fact police officers. Cruz and others may not
have. The evidence of shouted warnings did not show beyond
reasonable dispute that the officers could reasonably have ex-
pected the Tahoe’s driver to have heard them.
We explained in Doornbos v. City of Chicago, 868 F.3d 572,
585 (7th Cir. 2017), that with only rare exceptions, plainclothes
officers may not initiate Fourth Amendment seizures without
identifying themselves as police: “many civilians who would
peaceably comply with a police officer’s order will under-
standably be ready to resist or flee when accosted—let alone
grabbed—by an unidentified person who is not in a police of-
ficer’s uniform.” In Doornbos, we also summarized the special
dangers posed by the use of force by plainclothes officers as
reported in the U.S. Department of Justice’s investigations of
the police departments in Chicago and other cities, highlight-
ing Chicago’s “aggressive plainclothes policing practices that
result in needless injuries.” Id. at 586–88 & n.4. There have
been too many tragedies around the nation in which police
officers have used deadly force against their own colleagues
in plain clothes, often officers of color, in circumstances that
14 No. 19-1435
were “tense, uncertain, and rapidly evolving,” to quote Gra-
ham v. Connor, 490 U.S. 386, 396 (1989).1
1 One study sponsored by the National Law Enforcement Officers Me-
morial Fund and the Department of Justice identified 105 cases of inten-
tional but mistaken shootings of officers by other officers, “many times”
involving the intervention of plainclothes or off-duty officers. Nick Breul
& Desiree Luongo, Making It Safer 64–66 (2017),
https://cops.usdoj.gov/RIC/Publications/cops-w0858-pub.pdf. A New
York state task force addressed the “special fear” experienced by officers
of color encountering white officers while “out of uniform—off-duty, un-
dercover, or in plainclothes.” Reducing Inherent Danger 1, N.Y. State Task
Force on Police-on-Police Shootings (2010), https://www.hks.har-
vard.edu/sites/default/files/centers/wiener/programs/pcj/files/Police-on-
Police_Shootings_with_appendices.pdf. See also, e.g., Michael Wilson, Ali
Watkins & Ali Winston, “Friendly Fire” Killing of Detective: 42 Shots, 7 Of-
ficers, 11 Seconds, N.Y. Times (Feb. 13, 2019), https://www.ny-
times.com/2019/02/13/nyregion/nypd-cop-killed.html; WWJ, Detroit Cops
Fight Each Other in “Embarrassing” Undercover Mix-Up, CBS Detroit (Nov.
13, 2017), https://detroit.cbslocal.com/2017/11/13/detroit-police-under-
cover-mix-up; Associated Press, Black St. Louis Police Officer Shot by White
Colleague “Fearing for His Safety”, The Guardian (June 24, 2017),
https://www.theguardian.com/us-news/2017/jun/24/black-st-louis-police-
officer-shot-white-colleague; Matt Howerton, Cop Who Shot Fellow Officer:
I Didn’t Know It Was You, KOAT (Apr. 1, 2016), https://www.koat.com/ar-
ticle/cop-who-shot-fellow-officer-i-didn-t-know-it-was-you/5070698; Me-
ghan Keneally & Emily Shapiro, Maryland Cop Mistook Plainclothes Officer
as “Threat” During Fatal Shooting, ABC News (Mar. 16, 2016),
https://abcnews.go.com/US/maryland-cop-mistook-plainclothes-officer-
threat-fatal-shooting/story?id=37699834; CBS & AP, Report Finds BART
Cop Accidentally Shot, Killed Fellow Officer on Duty, CBS San Francisco (May
30, 2014), https://sanfrancisco.cbslocal.com/2014/05/30/report-finds-bart-
cop-accidentally-shot-killed-fellow-officer-on-duty; Ann Mercogliano &
Alice McQuillan, MTA Officer Who Shot Nassau Cop Is “Devastated”, NBC
N.Y. (Mar. 12, 2011), https://www.nbcnewyork.com/news/local/nassau-
county-police-officer-killed/1939873.
No. 19-1435 15
Nevertheless, despite some factual disputes bearing on the
ultimate reasonableness of the officers’ actions in this case, I
would affirm summary judgment for the officers based on the
doctrine of qualified immunity. As noted, plaintiff concedes
that the officers’ conduct falls somewhere on the “hazy” bor-
derline separating excessive and appropriate force. See Sauc-
ier v. Katz, 533 U.S. 194, 206 (2001), abrogated in nonrelevant
part by Pearson, 555 U.S. at 227. And even if that were not so,
plaintiff’s briefs failed to identify “a body of relevant case
law” rendering the officers’ conduct clearly unconstitutional
on the facts construed most favorably to her, and failed as
well to persuade that this is an “obvious” case controlled di-
rectly by Garner and Graham. See Brosseau v. Haugen, 543 U.S.
194, 199 (2004). We should take the more conservative deci-
sional route here by limiting our holding to the qualified im-
munity defense.