Cazares v. Frugoli

JOSE ANDRES CAZARES, as Special Administrator of the Estate of ANDREW CAZARES,deceased and FAUSTO T. MANZERA, as Special Administratorof the Estate of FAUSTO A. MANZERA, et al., Plaintiffs, v. JOSEPH FRUGOLI, et al., Defendants.

Case No. 13 C 5626

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 31, 2017

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

On April 10, 2009, Andrew Cazares and Fausto A. Manzera, two college-aged men, were killed when Joseph Frugoli, an intoxicated off-duty Chicago Police Detective, crashed into their car that was stopped on a Chicago expressway. Plaintiffs Jose Cazares and Fausto T. Manzera, as special administrators of the estates of Cazares and Manzera, respectively, sued Frugoli¹ and Frugoli's employer, the City of Chicago ("Chicago" or "the City").² The Plaintiffs argue that Frugoli and Chicago should be held responsible for Cazares' and Manzera's wrongful deaths. Specifically, in Count IV of Cazares' and Manzera's Fifth Amended Complaints, the Plaintiffs allege that the City should be held responsible for the deaths pursuant to 42 U.S.C. § 1983 under a theory of municipal liability. (Dkt. Nos. 86, 87); see Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 2036 (1978) (municipal bodies may besued for constitutional deprivations caused by governmental custom). Plaintiffs allege the City violated the decedents' substantive due process right to bodily integrity through the City's de facto policies of failing to investigate or prosecute police officer misconduct and the Chicago Police Department's code of silence, which led Frugoli to drive drunk without fear of consequences. Under current consideration are Chicago's Motions to Bar the Plaintiffs' three proposed expert witnesses and its Motion for Summary Judgment. Chicago's Motions to Bar Plaintiffs' Expert Witnesses is granted in part and denied in part. For the reasons discussed herein, Chicago's Motion for Summary Judgment is denied.

FACTS

In the early hours of April 10, 2009, Joseph Frugoli, an off-duty Chicago Police Department ("CPD") Detective, got behind the wheel of his Lexus SUV after spending the majority of the evening drinking at two different bars for approximately 4-5 hours. (Def. 56.1 ¶¶ 6-8, 11-12; Dkt. 290 ¶ 8.)³ Just after entering the Dan Ryan Expressway on Chicago's near south side, Frugoli crashed into the back of a stopped car killing its driver and passenger, Fausto A. Manzera and Andrew Cazares. (Def. 56.1 ¶¶ 20-23, 25.) Frugoli left the scene of the accident on foot, but was found and detained by Chicago Police Officers Adrienne Seiber and Todd Stremplewski approximately 15 minutes after the officers received the call about the accident. (Def. 56.1 ¶¶ 26-28; Dkt. 290-1 at 11:12-19.) When questioned by the officers, Frugoli admitted that he was in an accident and also conceded that he had been at a bar that evening. (Def. 56.1 ¶ 29) During their interview of Frugoli, the officers discovered that he was a Chicago police officer and they called for a supervisor and an ambulance because Frugoli hadsuffered a head injury in the collision and was bleeding.⁴ (Def. 56.1 ¶¶ 30-31, 33.) Despite interviewing, handcuffing, and placing Frugoli in a squad car, Stremplewski stated that he did not notice the odor of alcohol on Frugoli or recognize any signs of his impairment. (Pl. SOAF ¶ 2; Dkt. 285-9 at 12.) Before the ambulance arrived to transport Frugoli, the CPD officers on the scene did not administer any of the usual driving under the influence ("DUI") tests to Frugoli and neither recalls writing a report. (Def. 56.1 ¶ 34.) Paramedics who transported Frugoli to the hospital, however, noticed an odor of alcohol on Frugoli. (Pl. SOAF ¶ 4.) After arriving at the hospital and being tested, Frugoli's blood alcohol content was .328 mg/dl which is over four times the legal limit. (Dkt. 290-13 ¶ 31.) Two hours later, the Illinois State Police measured Frugoli's blood alcohol level at .24 mg/dl, which is three times the legal limit. (Pl. SOAF ¶ 4.) Frugoli was not drinking with any other CPD officers the night of the accident and testified that he was not encouraged or assisted to drink and drive that evening by any CPD officer. (Def. 56.1 ¶¶ 9, 10, 13.)

The fatal accident involving Manzera and Cazares was not the first time Frugoli had been suspected of driving drunk. On January 16, 2005, Frugoli rear-ended another vehicle on the Dan Ryan expressway. (Pl. SOAF ¶ 5.) Illinois State Trooper Kraft, who investigated the 2005 accident, later testified that he detected an odor of alcohol on Frugoli after the accident. (Id.) Frugoli admitted that he drank one beer before the accident, a practice he testified was not uncommon. (Dkt. 299 at 11; Dkt. 285-6 at 93:14-22.) Frugoli, who claimed he was injured in the collision, was transported from the scene of the accident to the hospital by ambulance. (Pl. SOAF ¶ 6.) By the time Trooper Kraft got to the hospital to continue his investigation, Frugoli had left, which prevented Kraft from performing any intoxication tests. (Id.) Trooper Kraft thenwent to Frugoli's home, where he left two traffic citations. (Id. ¶ 7.) When Kraft went to Cook County traffic court to prosecute the tickets, he saw Frugoli leaving and learned that the tickets had already been dismissed. (Id.) There is no evidence in the record that Frugoli ever reported this incident to the CPD or that the CPD was otherwise aware of the incident. (Def. 56.1 ¶ 42.)

Frugoli was also in two early morning car accidents in January 2008. On January 26, 2008, Frugoli was involved in a single car accident while on duty at 4:30 a.m. (Pl. SOAF ¶ 9.) Frugoli denied drinking the day of that accident and testified that the accident occurred after he skidded on a patch of ice and hit a curb. (Def. 56.1 ¶¶ 46-47.) CPD Sergeant Stacy Smith-Cotter investigated the crash. (Pl. SOAF ¶ 9.)

At approximately 5:00 a.m. the next day, Frugoli was involved in another accident. This time, he was off-duty when he broadsided a CPD squad car at a high rate of speed, injuring Natalie Joritz and William Orsa, the two CPD officers inside. (Def. 56.1 ¶¶ 49-50, 52; Pl. SOAF ¶ 10.) Frugoli testified that this accident resulted when he reached for his cell phone and went through a stop sign. (Def. 56.1 ¶ 50.) Frugoli denied drinking before this accident, yet, he had spent the previous six hours at a casino, appeared glassy eyed to one of the police officers he struck, and failed to inquire about their condition, render aid, or call for assistance. (Def. 56.1 ¶¶ 51, 55; Dkt. 285-6 at 25; Pl. SOAF ¶ 11.) After Joritz and Orsa were taken to the hospital by ambulance, CPD Sgt. Smith-Cotter, the same officer who had responded to the accident just 24 hours earlier,, responded to the scene with two other officers who investigated the accident. (Def. 56.1 ¶ 53; Pl. SOAF ¶ 12.) Although Frugoli was cited for the accident, he remained in Smith-Cotter's squad car, and the officer who wrote the tickets gave them to Smith-Cotter, not to Frugoli directly. (Def. 56.1 ¶ 56; Pl. SOAF ¶ 13.) The officers investigating the accident never spoke with or observed Frugoli and did not administer any intoxication tests. (Pl. SOAF ¶ 35.)Smith-Cotter, who was the only CPD officer who spoke with Frugoli at the scene, testified that she did not test Frugoli for intoxication but stated that he did not smell of alcohol and did not appear to have been drinking. (Def. 56.1 ¶ 55.) Smith-Cotter eventually drove Frugoli home. (Pl. SOAF ¶ 13.) Neither the investigating officers nor the injured officers were ever notified of a court date for the tickets given to Frugoli. (Pl. SOAF ¶ 14.)

During the course of his career, Frugoli was also the subject of eighteen complaints regarding his on-duty behavior. (Pl. SOAF ¶ 30.) These complaints comprised 43 distinct allegations for a variety of misconduct, including excessive use of force, verbal abuse, unprofessional behavior, and illegal search. (Dkt. 290-13 ¶ 22.) None of the complaints against Frugoli resulted in any CPD disciplinary action or were otherwise sustained by the CPD. (Reiter Dep. at 143:6-10.)

When asked about the fatal accident involving Cazares and Manzera, Frugoli denied that his decision to drink and drive had anything to do with an absence of discipline from the CPD for any prior incident. (Def. 56.1 ¶ 62.) Frugoli also denied that there was any CPD policy that gave him reason to believe he could drink and drive. (Id. ¶ 63.) Frugoli testified that he believed that he had the same chances as any other intoxicated person of getting a DUI. (Id. ¶ 64.) Frugoli further testified that he knew of two other CPD officers who had been arrested for DUI and believed that one of the officers had been terminated as a result of the arrest. (Id. ¶¶ 58, 59.)

In December 2015, Chicago Mayor Rahm Emanuel, publicly acknowledged that a code of silence exists within the CPD, and explained that the code includes "the tendency to ignore, deny or in some cases cover-up the bad actions of a colleague or colleagues." (Pl. SOAF ¶ 37; Dkt. 290-18 at 69.) Additionally, the City created a Police Accountability Task Force to review the CPD's system of training, oversight, discipline, and transparency. (Pl. SOAF ¶ 40; Dkt. 290-18.) The Task Force released a report with its recommendations for reform in April 2016. (Dkt. 290-18.) In its report, the Task Force "found that the code of silence is not just an unwritten rule, or an unfortunate element of police culture past and present. The code of silence is institutionalized and reinforced by CPD rules and polices that are also baked into the labor agreements between the various police unions and the City." (Dkt. 290-18 at 70.) After briefing was concluded, on January 13, 2017, the Department of Justice and the U.S. Attorney's Office for the Northern District of Illinois published a report detailing their investigation of the...