Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 1 of 15 PageID #:215 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION CATHERINE WALLER, on behalf of her minor son D.B., and ABENA ANDOH, on behalf of her minor son D.H., ADREN WILBOURN, on behalf of her minor son J.G. Plaintiffs, v. CITY OF CHICAGO, CHICAGO POLICE OFFICERS J.E. MORLOCK (Star #15358), KENNETH FLAHERTY (Star #13584), MARCO PROANO (Star #9477) and UNKNOWN CHICAGO POLICE, OFFICERS, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Hon. Amy J. St. Eve, J. No. 14-CV-223 Jury Trial Demanded DEFENDANT MARCO PROANO’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ SECOND AMENDED COMPLAINT Defendant, MARCO PROANO, by his attorneys, RAVITZ & PALLES, P.C., in response to Plaintiff’s Second Amended Complaint hereby states as follows: Introduction 1. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation under color of law of Plaintiffs’ rights as secured by the United States Constitution. ANSWER: Mr. Proano admits the characterization of this action, as contained in this paragraph. Jurisdiction and Venue 2. This Court has jurisdiction of the action pursuant to 28 U.S.C. §§ 1331 and 1343(a), the Constitution of the United States, and this Court’s supplemental jurisdiction powers. ANSWER: Mr. Proano admits that this court has jurisdiction. Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 2 of 15 PageID #:216 3. Venue is proper under 28 U.S.C. § 1391(b). On information and belief, all parties reside in this judicial district, and the events giving rise to the claims asserted herein occurred within district. ANSWER: Mr. Proano admits that this venue is proper. Parties 4. Catherine Waller is the mother and guardian of her minor child, D.B. D.B. and Waller are residents of Chicago, Illinois, within the Northern District of Illinois, Eastern Division. ANSWER: Mr. Proano lacks sufficient knowledge as to the truth of the allegations contained in this paragraph. 5. Abena Andoh is the mother and guardian of her minor child, D.H. Andoh and D.H. are residents of Chicago, Illinois, within the Northern District of Illinois, Eastern Division. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 6. Adren Wilbourn is the mother and guardian of her minor child, J.G. Wilbourn and J.G. are residence of Chicago, Illinois, within the Northern District of Illinois, Eastern Division. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 7. On information and belief, all Defendant Officers were at the time of the events complained of herein employed by the City of Chicago as Police Officers. ANSWER: Mr. Proano admits that at the time of the events he was employed as a CPD officer. He lacks sufficient knowledge to form a belief as to the truth of the remaining allegations contained in this paragraph. 8. City of Chicago is a municipal corporation within the Northern District of Illinois. ANSWER: Mr. Proano admits the allegations contained in this paragraph. 2 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 3 of 15 PageID #:217 9. At all times material to this Complaint, the Defendant Officers were acting under color of state law, ordinance, and/or regulation, statutes, custom, and usage of City of Chicago. ANSWER: Mr. Proano admits the allegations contained in this paragraph. Background 10. On or about December 22, 2013, D.B., D.H., J.G. were in a motor vehicle along with other minors. ANSWER: Mr. Proano lacks sufficient knowledge as to the truth of the allegations contained in this paragraph. 11. Said vehicle was stopped by Defendant Officers Morlock and Flaherty near 95th and LaSalle Street, Chicago, Illinois. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 12. Moments later, one of the passengers fled the scene. ANSWER: Mr. Proano admits the allegations contained in this paragraph. 13. Defendant Proano, who had just arrived on scene, exited his vehicle, and, with his firearm drawn, held sideways, and pointed in the direction of the Plaintiffs, began to move toward Plaintiffs and the other occupants of the car. ANSWER: Mr. Proano admits the allegations contained in this paragraph. 14. Plaintiffs’ car began moving in reverse and Defendant Proano opened fire on the vehicle, which included D.B, D.H, and J.G., who was still partially in the car. ANSWER: Mr. Proano admits the allegations contained in this paragraph. 15. Defendant Proano fired more than a dozen rounds into the vehicle filled with minors without provocation, cause or justification of any kind. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 3 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 4 of 15 PageID #:218 16. During the entire encounter, no weapon was brandished by Plaintiffs (or any other individuals in their vehicle), nor was there any act of violence or aggression directed at or toward Defendant Officers. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 17. D.B. was struck by several bullets. He suffered one wound to the shoulder and two others that grazed his forehead and cheek. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 18. D.H. was also hit by the barrage of bullets, suffering one wound to his left hip and one to his right heel. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 19. J.G. was forcibly taken to the ground by one of the Defendant Officers, causing injury to his right eye. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 20. After littering the vehicle with bullets, Defendant Proano and the other Defendant Officers detained Plaintiffs and handcuffed them. ANSWER: Mr. Proano denies the allegations contained in this paragraph as they relate to his conduct. He lacks sufficient knowledge to form a belief as to the truth or falsity of the remaining allegations. 21. D.B. and D.H. were later taken to Christ Advocate Hospital in Oak Lawn, Illinois for treatment and J.G. was taken to Little Company of Mary Hospital. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 4 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 5 of 15 PageID #:219 22. While receiving treatment at Christ Advocate, Chicago Police Officer(s) unknown at this time removed D.B. and D.H. from said Hospital without proper authorization. At the time, it was obvious that D.B. and D.H. were still in pain and in need of additional treatment for their gunshot wounds. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 23. Said unknown officer(s) transported D.B. and D.H. directly to the Fifth District Chicago Police station for questioning. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 24. J.G. was also transported directly from the Little Company of Mary Hospital to the police station for questioning. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 25. During the lengthy interviews that followed, D.H. was in extreme anguish from his gunshot wounds, at times crying from the pain. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 26. Similarly, during said interviews, D.B.’s gunshot wound to his shoulder began to bleed so profusely that he had to be taken back to Christ Hospital for additional medical treatment. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 5 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 6 of 15 PageID #:220 Count I Excessive Force 42 U.S.C. § 1983 27. Plaintiffs re-allege each of paragraphs 1-26 as if fully stated herein. ANSWER: Mr. Proano restates his previous answers to the relevant paragraphs as if more fully set forth herein. 28. As a result of the Defendant Officers’ unjustified and excessive use of force, Plaintiffs suffered pain and injury, as well as emotional distress. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 29. Plaintiffs engaged in no acts of violence toward Defendant Officers, did not brandish any weapons, or engage in any conduct which made the use of force described above reasonable or necessary. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 30. This conduct violated the Fourth and Fourteenth Amendments to the United States Constitution, and hence 42 U.S.C. § 1983. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 31. The misconduct described in this Count was objectively unreasonable and was undertaken intentionally with malice, willfulness, and reckless indifference to Plaintiffs’ constitutional rights. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 32. The aforementioned actions of the Defendant Officers were the direct and proximate cause of the constitutional violations, and the attendant injuries resulting therefrom, as set forth above. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 33. The misconduct described in this Count was undertaken pursuant to the policy and practice of the City of Chicago by its Police Department in that: a. As a matter of both policy and practice, the Chicago Police Department directly encourages, and is thereby the moving force behind, the very type of misconduct at issue here by failing to adequately train, supervise and control its officers, such that its failure to do so manifests deliberate indifference; b. As a matter of policy and practice, the Chicago Police Department facilitates the very type of misconduct at issue here by failing to adequately punish and discipline prior 6 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 7 of 15 PageID #:221 instances of similar misconduct, thereby leading Chicago Police Officers to believe their actions will never be scrutinized and, in that way, directly encourages future abuses such as those affecting Plaintiffs; c. Generally, as a matter of widespread practice so prevalent as to comprise municipal policy, officers of the Chicago Police Department abuse citizens in a manner similar to that alleged by Plaintiffs in this Count on a frequent basis, yet the Chicago Police Department makes findings of wrongdoing in a disproportionately small number of cases; d. As a matter of policy and practice, the Chicago Police Department makes its officers aware that if there are no corroborating witnesses or evidence which support a complainant’s version of the events in question, a complaint of excessive force will never be sustained against them; e. Municipal policymakers are aware of (and condone and facilitate by their inaction) a “code of silence” in the Chicago Police Department, by which officers fail to report misconduct committed by other officers, such as the misconduct at issue in this case; and f. The City of Chicago has failed to act to remedy the patterns of abuse described in the preceding sub-paragraphs, despite actual knowledge of the same, thereby causing the types of injuries alleged here. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 34. As a result of the Defendant Officers’ unjustified and excessive use of force and the policy and practices of the City of Chicago, Plaintiffs have, as a direct and proximate cause, suffered pain and injury, including emotional distress. ANSWER: Mr. Proano denies the allegations contained in this paragraph. Count II Failure to Intervene 42 U.S.C. § 1983 35. Plaintiffs re-allege each of paragraphs 1-34 as if fully stated herein. ANSWER: Mr. Proano restates his previous answers to the relevant paragraphs as if more fully set forth herein. 36. As described more fully above, one or more of the Defendant Officers had a reasonable opportunity to prevent the violations of Plaintiffs’ constitutional rights as set forth above. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 7 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 8 of 15 PageID #:222 37. As a result of the Defendant Officers’ failure to intervene, Plaintiffs suffered pain and injury, as well as emotional distress. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 38. The Defendant Officers’ actions were undertaken intentionally with malice and reckless indifference to Plaintiffs’ rights. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 39. The misconduct described in this Count was undertaken pursuant to the policy and practice of the Chicago Police Department in the manner described more fully above. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 40. The misconduct described in this Count was undertaken by the Defendant Officers within the scope of their employment and under color of law such that their employer, City of Chicago, is liable for their actions. ANSWER: Mr. Proano denies the allegations contained in this paragraph. Count III Substantive Due Process 42 U.S.C. 1983 41. Plaintiffs re-allege each of paragraphs 1-40 as if fully stated herein. ANSWER: Mr. Proano restates his previous answers to the relevant paragraphs as if more fully set forth herein. 42. In the manner described more fully above, Defendant Officers deprived Plaintiffs of Due Process in violation of the 14th Amendment to the United States Constitution. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 43. Defendant Officers’ actions set forth above were so arbitrary as to shock the conscience, including, but not limited to, opening fire into a vehicle filled with minor passengers without cause, and, removing Plaintiffs from the hospital knowing that doing so was unauthorized and would cause additional pain and suffering, emotional distress, and injury. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 8 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 9 of 15 PageID #:223 44. Such violations of Plaintiffs’ rights were undertaken intentionally, with malice and willful indifference to Plaintiffs’ rights. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 45. The misconduct described in this Count was undertaken pursuant to the policy and practice of the Chicago Police Department in the manner described in preceding paragraphs. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 46. As a result of the above-described wrongful conduct, as well as the City of Chicago’s policy and practice, Plaintiffs have suffered pain and injury, as well as emotional distress. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 47. The misconduct alleged in this Count was undertaken while the Defendant Officers were acting within the scope of their employment. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 48. The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to the rights of others. ANSWER: Mr. Proano denies the allegations contained in this paragraph. COUNT IV Failure to Provide Medical Care 42 U.S.C. § 1983 49. Plaintiffs re-allege each of paragraphs 1-48 as if fully stated herein. ANSWER: Mr. Proano restates his previous answers to the relevant paragraphs as if more fully set forth herein. 50. While in the custody of Defendant Officers, Plaintiffs were removed from a medical care facility, knowingly depriving them of serious and required medical care, as described more thoroughly above. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 9 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 10 of 15 PageID #:224 51. As a result of Defendants’ objectively unreasonable conduct and deliberate indifference to necessary medical needs, Plaintiffs suffered additional damages, as well as pain, discomfort, and distress. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 52. The misconduct described in this Count was objectively unreasonable and was undertaken intentionally with willful indifference to Plaintiffs’ constitutional rights. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 53. The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to Plaintiffs’ health and safety. ANSWER: Mr. Proano lacks sufficient knowledge to form a belief as to the truth of the allegations contained in this paragraph. 54. The misconduct described in this Court was undertaken pursuant to the policy and practice of the Chicago Police Department in the manner described in the preceding paragraphs. ANSWER: Mr. Proano lacks sufficient knowledge as to the truth of the allegations contained in this paragraph. Count V Conspiracy to Commit Constitutional Violations 42 U.S.C. § 1983 55. Plaintiffs re-allege each of paragraphs 1-54 as if fully stated herein. ANSWER: Mr. Proano restates his previous answers to the relevant paragraphs as if more fully set forth herein. 56. As discussed in greater detail above, some or all of the Defendant Officers conspired with each other and/or with members of their department to cause damage to the Plaintiffs in the following manner: a. Agreeing not to report each other after witnessing and/or using excessive force relative to the Plaintiffs; b. Agreeing not to generate reports documenting their conduct to coverup their own and each other’s misconduct; 10 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 11 of 15 PageID #:225 c. Agreeing to generate reports and other documents which omitted material facts relating to the events described above and containing patent falsities; and d. Agreeing to remove the Plaintiffs from hospital facilities in order to engage in lengthy, coercive interrogations designed to elicit statements from the medicated and injured minors to ‘justify’ the indefensible shootings. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 57. The aforementioned actions of the Defendant Officers were the direct and proximate cause of the violations of the United States Constitution discussed above, and the attendant injury and emotional distress resulting therefrom. ANSWER: Mr. Proano denies the allegations contained in this paragraph. Count VI State Law Claim: Assault and Battery 58. Plaintiffs re-allege each of paragraphs 1-57 as if fully stated herein. ANSWER: Mr. Proano restates his previous answers to the relevant paragraphs as if more fully set forth herein. 59. As described more fully in the preceding paragraphs, Plaintiffs were shot multiple times without justification or provocation. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 60. The actions of the Defendant Officers, which occurred while acting under color of law and within the scope of their employment, constituted unjustified and offensive physical contacts, undertaken willfully and wantonly, proximately causing Plaintiffs’ bodily injuries. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 61. The misconduct described in this Count was objectively unreasonable and was undertaken intentionally with willful indifference to Plaintiffs’ constitutional rights. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 62. The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to the rights of others. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 11 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 12 of 15 PageID #:226 63. As a result of the offensive touching, Plaintiffs sustained bodily injuries. Additionally, Plaintiffs were in reasonable apprehension that they were in considerable physical danger. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 64. The misconduct described in this Count was undertaken by the Defendant Officers while acting within the scope of their employment such that their employer, City of Chicago, is liable for their actions. ANSWER: Mr. Proano denies the allegations contained in this paragraph. 65. Defendant City of Chicago is liable as principal for all torts committed by its agents. ANSWER: Paragraph 65 states a legal conclusion and therefore Mr. Proano makes no answer thereto. Count VII State Law Claim: Respondeat Superior 66. Plaintiffs re-allege each of paragraphs 1-65 as if fully stated herein. ANSWER: Mr. Proano restates his previous answers to the relevant paragraphs as if more fully set forth herein. 67. In committing the acts alleged in the preceding paragraphs, the Defendant Officers were acting as members and agents of the City of Chicago acting at all relevant times within the scope of their employment. ANSWER: Mr. Proano admits the allegations contained in this paragraph. 68. Defendant City of Chicago is liable as principal for all torts committed by its agents. ANSWER: Paragraph 68 states a legal conclusion and therefore Mr. Proano makes no answer thereto. 12 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 13 of 15 PageID #:227 COUNT VIII State Law Claim: Indemnification 69. Plaintiffs re-allege each of paragraphs 1-68 as if fully stated herein. ANSWER: Mr. Proano restates his previous answers to the relevant paragraphs as if more fully set forth herein. 70. Illinois law provides that public entities are directed to pay any tort judgment for compensatory damages for which employees are liable within the scope of their employment activities. ANSWER: Paragraph 70 states a legal conclusion and therefore Mr. Proano makes no answer thereto. 71. The Defendant Officers are employees of the Chicago Police Department, who acted within the scope of their employment in committing the misconduct described herein. ANSWER: Mr. Proano admits that he was an employee of the Chicago Police department acting within the scope of his employment at the time of the incident complained of. He denies the remaining allegations in this paragraph. WHEREFORE, defendant MARCO PROANO prays for judgment in his favor and the costs of this action. AFFIRMATIVE DEFENSES First Affirmative Defense: Qualified Immunity At all times material to the events alleged in the Complaint, Defendant Proano was a government official and performed discretionary functions. 745 ILCS 10/2-201. As to the federal claims against Defendant Proano, a reasonable police officer objectively viewing the facts and circumstances that confronted Defendant Proano could have believed his action to be lawful, in light of clearly established law and the information that Defendant Proano possessed. Defendant Proano therefore, is entitled to qualified immunity as a matter of law. 13 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 14 of 15 PageID #:228 Second Affirmative Defense: Qualified Immunity Defendant Proano was working as a police officer, and acting within the scope of his employment, at the time of the facts alleged in the Complaint. Under the Illinois Tort Immunity Act, Defendant Proano is not liable for the claims alleged against him in the execution and enforcement of the law . 745 ILCS 10/2-202. Third Affirmative Defense: Illinois Tort Immunity Act Defendant Proano was working as a police officer, and acting within the scope of his employment, at the time of the facts alleged in the Complaint. Under the Illinois Tort Immunity Act, Defendant Proano is not liable for the claims alleged against him because a public employee acting within the scope of his or his employment is not liable for an injury caused by the act or omission of another person. 745 ILCS 10/2-204. Fourth Affirmative Defense: Comparative Fault To the extent any injuries or damages claimed by Plaintiffs were proximately caused, in whole or in part, by the negligent, willful, wanton, and/or other wrongful conduct on the part of Plaintiffs, any verdict or judgment obtained by Plaintiffs must be reduced by application of the principles of comparative fault, by an amount commensurate with the degree of fault attributed to Plaintiffs by the jury in this case. Fifth Affirmative Defense: Failure to Mitigate To the extent Plaintiff failed to mitigate any of his claimed injuries or damages, a verdict or judgment obtained by Plaintiff must be reduced by an application of the principle that Plaintiff has a duty to mitigate, commensurate with a degree of failure to mitigate attributed to Plaintiffs by the jury. 14 Case: 1:14-cv-00223 Document #: 38 Filed: 06/12/14 Page 15 of 15 PageID #:229 JURY DEMAND Defendant Marco Proano demands a trial by jury. Respectfully submitted, /s/ Eric S. Palles ____________________________ Eric S. Palles, One of the Attorneys for Defendant Marco Proano Eric S. Palles Gary J. Ravitz RAVITZ & PALLES, P.C. 203 N. LaSalle St., Suite 2100 Chicago, IL 60601 (312) 558-1689 15