Police Misconduct January 25, 2019bhorwitz
by: Patricia Manson Chicago Daily Law Bulletin
January 16, 2019
A man who alleges Chicago police denied his repeated requests for medical care after he was arrested in a “road rage” incident got the go-ahead to pursue a Fourth Amendment claim.
In a written opinion last week, U.S. District Judge Harry D. Leinenweber did not rule on the merits of David Michon’s allegations that officers mocked and threatened him when he was asked to be treated for a town ligament on his right knee and cuts on his head and face.
But Leinenweber held Michon had stated a claim that the officers’ purported denial of medical treatment was objectively unreasonable.
Factors to be considered in determining if an arrestee has sufficiently alleged a Fourth Amendment violation include whether law enforcement authorities had notice of the arrestee’s medical needs and the seriousness of those needs, Leinenweber wrote, citing Williams v. Rodriguez, 509 F.3d 392 (7th Cir. 2007).
Michon, he wrote, alleges he was bleeding, had a noticeable limp and told the officers who arrested him “over and over again” that he needed treatment.
“Think back when watching a football game, and the star running back limps off the field,” Leinenweber wrote. “The first concern is that he may have suffered a serious knee injury.”
Another factor to be considered in determining if an arrestee has stated a Fourth Amendment claim is the scope of the treatment sought, Leinenweber wrote.
He wrote Michon asked only to be taken to the hospital.
“He was not requesting that the police provide him with surgery or a knee replacement,” Leinenweber wrote.
The fourth factor to be considered, he wrote, is whether some interest of the police prevented them from transporting the arrestee to a medical facility.
Under the Chicago Police Department’s general orders, “an arrestee who requests medical care is to receive it if not unreasonable,” Leinenweber wrote.
The police, he wrote, do not contend they lacked the manpower to take Michon to the hospital.
And the police do not contend Michon, who was released from custody after four or five hours, was a threat to public safety, Leinenweber wrote.
After considering the four factors, he wrote, citing Ortez v. Chicago, 656 F.3d 523 (7th Cir. 2011), a judge must determine if the arrestee sufficiently alleges the defendant’s conduct injured him or her.
Although Michon does not allege the police tore his ligament, he does allege he had to walk more than 2 miles on his injured leg to get back to his car following his release from custody, Leinenweber wrote.
He denied a motion for summary judgment made by the defendants on the claim of denial of medical care.
The defendants are officers Emily Campbell, Keith Fuelling and Eric Oliver and the city of Chicago.
The lead attorney for Michon is Blake W. Horwitz of The Blake Horwitz Law Firm Ltd.
“The officers treated my client very poorly, like an animal, and I’m looking forward to litigating the case before a jury,” Horwitz said.
“I’m thankful the judge put his time and effort into the decision.”
The lead attorneys for the defendants are Eric S. Palles and Gary J. Ravitz, both of Ravitz & Palles P.C.
Other attorneys representing the defendants include David L. Farr of Farr & Farr LLC and Emily Wessel Farr and Julie Palles, both of Ravitz & Palles.
The defendants’ attorneys could not be reached for comment.
Michon filed his original suit in June 2016. He filed his second amended complaint in July 2018.
Michon alleges he was driving west on Archer Avenue in December 2014 when another driver threw a bottle at his car.
He and the other driver stopped near the intersection of Archer and Pulaski Road and became involved in a physical altercation, Michon alleges.
He maintains he suffered severe injuries at the hands of the other driver.
Police officers who arrived at the scene denied his request to call an ambulance, Michon contends.
Instead, he contends, they arrested him on charges of battery and criminal damage to property and took him to the 8th District Police Station at 63rd Street and St. Louis Avenue.
When he asked the officers to call a doctor, one told him he would be “lost in the system” until New Year’s Day if he made that request again, Michon contends.
He contends another officer threw a paper towel at him with an order to wipe his own blood off the floor.
When he was released, an officer cursed at him when he made a final request to be taken to a doctor, Michon alleges.
His cellphone was in the car, so he could not call for a ride, Michon contends.
He contends he did not see any taxis and that a bus driver refused to let him board because he was limping and bloody.
After he reached his car, he drove himself to the hospital, where he was treated and released, Michon says.
He says he had knee surgery a month later. Michon’s orthopedic surgeon says Michon is a candidate for a knee replacement.
Michon alleges his injuries have left him unable to return to his occupation as a union floor layer.
The criminal charges against Michon were dismissed in July 2015.
In his opinion, Leinenweber granted summary judgment in favor of the defendants on a due process count.
That count alleged the officers put Michon in a position of danger they created by denying him medical treatment and then releasing him more than 2 miles from his car without providing transportation.
A due process count based on a theory of state-created danger is an exception to the rule set out in DeShaney v. Winnebago County, 489 U.S. 189 (1989).
In that case, the U.S. Supreme Court held there is no affirmative right to government protection.
Leinenweber wrote the officers’ purported actions were “impolite bordering on boorish.”
But those actions “do not rise to the level of a due process violation,” he continued.
Michon had his wallet, Leinenweber wrote, and the wallet contained a few $20 bills. “He had money in his pocket,” Leinenweber wrote. “There were many establishments along the route where he would have access to a telephone to call a cab or a friend for a ride.”
Leinenweber issued his opinion last Thursday in David Michon v. Officer Emily Campbell, et al., No. 16 C 6104.