Case: 1:13-cv-05697 Document #: 83 Filed: 02/10/15 Page 1 of 13 PageID #:312

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LINDA CHATMAN as Special Administrator of
the Estate of CEDRICK CHATMAN, deceased,

)
)
)
Plaintiff,
)
)
vs.
)
)
CITY OF CHICAGO, a municipal corporation,
)
LOU TOTH, KEVIN FRY, and others not presently )
known to Plaintiff,
)
)
Defendants.
)

Case No. 13 CV 05697

JUDGE GETTLEMAN
Magistrate Judge Brown

DEFENDANT OFFICER KEVIN FRY AND LOU TOTHS ANSWER TO PLAINTIFFS

AMENDED COMPLAINT, AFFIRMATIVE DEFENSES, AND JURY DEMAND
Defendant Officers Kevin Fry and Lou Toth by one of their attorneys, Tiffany Y. Harris,
Senior Counsel for the City of Chicago, now come for their Answer to Plaintiffs Complaint,
Affirmative Defenses, and Jury Demand, hereby states as follows:
Jurisdiction and Venue
1.
This action seeks damages under federal law, Title 42 U.S.C. 1983, for
defendants' actions which violated Plaintiff's rights under the Fourth and Fourteenth Amendments
to the United States Constitution. This action also seeks damages for claims arising under Illinois
law.
ANSWER:

The Defendant Officers admit that Plaintiff purports to seek damages under 42

U.S.C. 1983 and Illinois state law. The Defendants deny committing any acts which violated
the rights of the Plaintiff under the Fourth and Fourteenth Amendments to the United States
Constitution.
2.
The jurisdiction of this Court is invoked pursuant to Title 28 U.S.C. Sections 1331
and 1343 and this Court's supplemental jurisdiction under Title 28 U.S.C. Section 1367. Venue in
this District is predicated upon Title 28 U.S.C. Section 1391(b) as all events giving rise to the
claims asserted herein took place within this Northern District of Illinois.

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ANSWER:

The Defendant Officers admit that jurisdiction and venue are proper. The

Defendant Officers deny remaining allegations and complained of conduct contained in this
paragraph.
Parties
3.
Plaintiff, LINDA CHATMAN brings this action as the Special Administrator of the
Estate of CEDRICK CHATMAN (hereinafter "CHATMAN"), deceased. LINDA CHATMAN is
the mother of CEDRICK CHATMAN. CEDRICK CHATMAN was a resident of the City of
Chicago, County of Cook, State of Illinois, in this District. CEDRICK CHATMAN died as a result
of the injuries he sustained at the hands of defendants on January 7, 2013.
ANSWER:

The Defendant Officers admit upon information and belief, that Cedrick Chatman

died after sustaining gunshot wounds after he placed Officer Fry in fear of his and/or his partners
life. The Defendant Officers further admit upon information and belief, that Plaintiff Linda
Chatman purports to bring this action as the Special Administrator of the Estate of Cedrick
Chatman, but denies, upon information and belief, that Linda Chatman is the Special
Administrator of the Estate of Cedrick Chatman as a search of the Cook County Circuit Court
reveals no such estate or appointment of special administrator. The City lacks knowledge or
information sufficient to form a belief as to the truth of the remaining allegations contained in this
paragraph.
4.
At all times material hereto defendant OFFICER LOU TOTH, (hereinafter
"TOTH") was a sworn law enforcement officer employed by the City of Chicago. At all times
material hereto defendant TOTH was acting under color of state law and within the scope of his
employment with the City of Chicago. TOTH is sued individually.
ANSWER:

The Defendant Officers admit that, at all times relevant to this Complaint, Officer

Lou Toth was employed by the City of Chicago. The Defendant Officers further admit the
remaining allegations contained in this paragraph.
5.
At all times material hereto defendant OFFICER KEVIN FRY (hereinafter "FRY")
was a sworn law enforcement officer employed by the City of Chicago. At all times material hereto
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defendant FRY was acting under color of state law and within the scope of his employment with
the City of Chicago. FRY is sued individually.
ANSWER:

The Defendant Officers admit that, at all times relevant to this Complaint, Officer

Kevin Fry was employed by the City of Chicago. The Defendant Officers further admit the
remaining allegations contained in this paragraph.
6.
The defendant City of Chicago (hereinafter "CITY") is an Illinois municipal
corporation and body politic located in Cook County, Illinois. At all relevant times hereto, the
CITY was the employer of defendants TOTH and FRY and other police officers involved in
varying degrees in the events at issue.
ANSWER:

The Defendant Officers admit that the City of Chicago is an Illinois municipal

corporation and body politic located primarily in Cook County, Illinois. The Defendant Officers
further admit that, at all times relevant to this Complaint, the City of Chicago was the employer of
Defendant Officers Toth and Fry.

The Defendant Officers lack knowledge or information

sufficient to form a belief as to the truth of the remaining allegations in this paragraph.
7.
At all times relevant on January 7, 2013, defendants TOTH and FRY were on patrol
in the area of East 75th Street and South Jeffrey in the City of Chicago.
ANSWER:

The Defendant Officers admit the allegations contained in this paragraph.

8.
On January 7, 2013, at approximately 1:45 in the afternoon defendants TOTH and
FRY had observed 17 year old CHATMAN driving a Grey Dodge Charger.
ANSWER:

The Defendant Officers admit that on January 7, 2013 at approximately 1:45 in the

afternoon, Defendant Officers Toth and Fry observed a grey or silver Dodge Charger driven by an
individual now known to be Cedric Chatman. The Defendant Officers deny that they were aware
of the age or identity of the driver at the time of the incident.
9.
While CHATMAN was stopped in traffic in the vicinity of the intersection of East
75th and Jeffery, defendants TOTH and FRY pulled their unmarked vehicle into the bus lane to the
right and in front of the charger, exited their squad car and approached the automobile on foot.
ANSWER:

The Defendant Officers admit, upon information and belief, that in the vicinity of
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the intersection of 75th and Jeffery, they exited their squad car and approached on foot the vehicle
in which Chatman was driving when it was stopped at a red light.
10.
Defendant TOTH came across the front of the charger, service weapon drawn, and
ordered CHATMAN to raise his hands and exit the vehicle.
ANSWER:

The Defendant Officers admit the allegations of paragraph ten.

11.
Defendant FRY, service weapon also drawn, ran around the rear of the Charger, but
was unable to see anything being done by the decedent until after CHATMAN had exited from the
vehicle.
ANSWER: Defendant Officer Fry admits the allegations of paragraph eleven. Upon information
and belief Defendant Officer Toth admits the allegations of paragraph eleven.
12.
As TOTH approached the drivers side door, CHATMAN exited the Charger and
ran in a southerly direction away from defendants TOTH and FRY, reached the south sidewalk of
75th Street, then immediately turned and continued running at a high rate of speed westerly in the
direction of the intersection at Jeffrey Boulevard.
ANSWER:

The Defendant Officers admit that Chatman exited the Charger and ran in a

southeasterly direction on 75th Street. The Defendant Offices admit that Chatman reached the
south sidewalk of 75th Street while running at a high rate of speed east and immediately turned and
continued running west on 75th towards the direction of south Jeffrey Boulevard. The Defendants
deny the remaining allegations of paragraph twelve.
13.
Defendant TOTH ran directly behind in pursuit of CHATMAN, while his partner,
FRY, moved diagonally to the southwest in the through lanes of 75th Street, basically parallel to his
partner as TOTH pursued CHATMAN toward the intersection.
ANSWER:

The Defendants admit the allegations of paragraph thirteen.

14.
As CHATMAN neared the intersection, still running at great speed, defendants
TOTH and FRY both claim that CHATMAN made a slight turn of his upper torso to the right.
ANSWER:

Defendants admit that Chatman made a slight turn of his upper torso to the right

while running at a high rate of speed.

15.

At the time he observed CHATMAN make that slight turn, defendant TOTH was
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unable to see the decedents hands.

ANSWER:

Defendant Lou Toth admits the allegations of paragraph fifteen. Upon information

and belief Defendant Kevin Fry admits the allegations of paragraph fifteen.
16.
Although he had his service weapon drawn throughout his pursuit of the decedent,
because he did not believe that CHATMANS actions placed him or anyone else in danger of death
or great bodily harm, TOTH claims that he did not discharge his weapon.
ANSWER: Defendants admit Lou Toth admits that he had his service weapon drawn at the
time of the pursuit and that he did not discharge his weapon. Defendants deny the remaining
allegations of paragraph sixteen.
16. [sic] FRY, on the other hand, claims to have fired his service weapon four times at
CHATMAN, which caused him to sustain multiple gunshot wounds.
ANSWER: Defendant Officer Kevin Fry admits that he fired his weapon four times but lacks
knowledge of the remaining allegations of this paragraph to form a belief as to their veracity and
therefore neither admits nor denies said allegations. . Upon information and belief Defendant
Officer Lou Toth admits that Officer Kevin Fry fired his weapon four times but lacks knowledge
of the remaining allegations of this paragraph to form a belief as to their veracity and therefore
neither admits nor denies said allegations.
17.
At the time shots were fired at CHATMAN, the five foot five inch teenager did not
pose a threat of harm to defendants TOTH, FRY or any other individual(s) in the area of the
shooting.
ANSWER:

The Defendant Officers deny the allegations of paragraph seventeen.

18.
Somewhere between three and seven seconds elapsed from the time CHATMAN
exited the Charger and the time he was gunned down in the street by Chicago police officers FRY
and/or TOTH.
ANSWER:

Defendant Officers deny the allegations of paragraph eighteen. Defendant Officers

admit that three to seven second elapsed from the time that Officer Fry exited his own police
vehicle until he discharged his weapon.
19.
From the time that they exited their squad car, up and through the (at most) seven
seconds that had elapsed until shots were fired at CEDRICK CHATMAN, no conversation of any
kind occurred between defendants FRY and TOTH.
ANSWER:

Defendants admit that they did not have any conversation from the time that the
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Officers exited their police vehicle until shots were fired by Officer Fry. The Defendants deny the
remaining allegations of this paragraph.
20.
According to the Cook County Medical Examiner, CHATMAN died of multiple
gunshot wounds.
ANSWER: The Defendant Officers admit the allegations of paragraph twenty upon
information and belief.
21.
Subsequent to the shooting of CEDRICK CHATMAN, defendants FRY and
TOTH, along with other employees and supervisory personnel from the City of Chicago Police
Department, participated in an orchestrated plan or scheme to cover up or conceal the misconduct
of the individual defendant officers in taking the life of the plaintiffs decedent without any lawful
justification whatsoever.
ANSWER:
22.

The Defendants deny the allegations of paragraph twenty-one.

That plan or scheme consisted of one or more of the following actions:

a. Preparing or assisting in the preparation and filing of false and misleading police
reports which were designed to justify, after-the-fact, the misconduct alleged herein
above;
b. Making or permitting to be made false assertions and statements to individuals
investigating the shooting of the plaintiffs decedent by one or more members of
the City of Chicago Police Department about the actions of the plaintiffs decedent
immediately prior to his being gunned down in the street by the individual
defendant officers;
c. Making false statements to local media or media spokesmen about the actions of
the plaintiffs decedent immediately prior to his being gunned down in the street by
the individual defendant officers, resulting in the publication of false newspaper
and internet stories about the manner in which CEDRICK CHATMANs life was
taken by the Chicago police; and
d. Failing to make all reasonable efforts to locate additional witnesses to the shooting of
CEDRICK CHATMAN.
ANSWER:
included.

The Defendants deny the allegations of paragraph twenty-two sub-sections (a) (d)

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23.
By reason of the above-described acts and omissions of the defendant police
officers, plaintiff LINDA CHATMAN sustained economic injuries, physical injuries, humiliation,
and indignities, and suffered great mental and emotional pain and suffering, all to her damage.
ANSWER:

The Defendant Officers deny the allegations of paragraph twenty-three.

24.
The aforementioned acts of the defendant police officers TOTH and FRY were
willful, wanton, malicious, oppressive, and done with reckless indifference to and/or callous
disregard for plaintiffs' rights and justify the awarding of exemplary and punitive damages.
ANSWER:

The Defendant Officers deny the allegations of paragraph twenty-four.

COUNT I
EXCESSIVE FORCE (Individual defendants) - 42 U.S.C. 1983

25.
Plaintiff re-alleges and incorporates paragraphs one through twenty-four, above, as
if fully restated here in as this paragraph twenty-five.
ANSWER:

The Defendant Officers re-assert their answers to paragraph one (1) through

twenty-four (24) as their answer to paragraph twenty-five (25) as though fully set forth herein.
26.
At all times relevant hereto, plaintiffs decedent had the right to be from injury from
unreasonable, malicious, excessive force from state actors such as defendants, as protected by the
Fourth and Fourteenth Amendments to the Constitution of the United States.
ANSWER:

The Defendant Officers admit, upon information and belief, that Plaintiffs

decedent was entitled to certain rights under the Fourth and Fourteenth Amendments to the
Constitution of the United States. The Defendant Officers deny upon information and belief, that
Defendants violated Plaintiffs decedents rights and further deny, upon information and belief,
the remaining allegations and complained of conducted contained in this paragraph.
27.
As described above, defendants TOTH and/or FRY violated the plaintiffs
decedent's right to be free from unreasonable, malicious, excessive force when he/they shot
CHATMAN causing multiple gunshot wounds which proximately caused his death.
ANSWER:

The Defendant Officers deny the allegations contained in this paragraph.

28.
As result of defendants' concerted unjustified and excessive use of force,
CHATMAN suffered injuries, pain as well as severe emotional distress.
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ANSWER:

The Defendant Officers deny the allegations contained in this paragraph.

29.
Assuming arguendo that defendant TOTH did not fire his weapon, even if his
weapon was not in fact actually discharged in the direction of CHATMAN, defendant TOTH was
present at the scent [sic] of this occurrence and had a reasonable opportunity to prevent the harm
done to CHATMAN, and should have intervened to prevent his partners (FRYs) unjustified and
excessive use of force in shooting the Plaintiffs decedent.
ANSWER:

The Defendant Officers deny the allegations of this paragraph.

30.
As a result of that failure to intervene, CEDRICK CHATMAN suffered pain and
injury, and ultimately death.
ANSWER:

The Defendant Officers deny the allegations of this paragraph.

31.
The misconduct described in this Count I was objectively unreasonable and was
undertaken intentionally with willful deliberate indifference to CHATMAN's constitutional rights.
ANSWER:

The Defendant Officers deny the allegations of this paragraph.

32.
The misconduct described in this Count I was undertaken with malice, willfulness,
and reckless indifference to the rights of others.
ANSWER:

The Defendant Officers deny the allegations of paragraph thirty-two.

COUNT II
WRONGFUL DEATH - STATE LAW

33.
Plaintiff restates and incorporates by reference as if fully set forth herein
paragraphs one through thirty-two, above, as and for this paragraph thirty-three.
ANSWER:

The Defendant Officers re-assert their answers to paragraph one (1) through

thirty-two (32) as their answer to paragraph thirty-three (33) as though fully set forth herein.
34.
At the aforesaid place and time, the CITY, by its agents and employees, including
but not limited to the individually named defendants TOTH and FRY, was under a duty to avoid
willful and wanton misconduct while conducting police activities.
ANSWER:

This count is not directed at Defendant Officers Kevin Fry and Lou Toth and

Defendants therefore make no answer.

35.
At all times relevant, it was the duty of the CITY, by and through its duly
authorized agents, servants, and/or employee police officers, to refrain from conduct exhibiting a
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reckless or conscious disregard for the safety of others, including the plaintiff's decedent,
CHATMAN.
ANSWER:

This count is not directed at Defendant Officers Kevin Fry and Lou Toth and

Defendants therefore make no answer.

36.
Moreover, at the aforesaid time and place, the CITY, by its agents and employees,
was under a duty to comply with and conduct itself in accordance with accepted and established
police procedures and policies and the Chicago Police Department's General and Special Orders.
ANSWER:

This count is not directed at Defendant Officers Kevin Fry and Lou Toth and

Defendants therefore make no answer.

37.
Notwithstanding these duties, the CITY, by its authorized agents, servants, and/or
employee police officers committed one or more of the following willful and wanton acts and/or
omissions:
a.

Used deadly force against CHATMAN under circumstances in which CHATMAN

presented no threat of death or serious bodily harm to the police officers or any
other individual;

b.

Discharged a firearm at CHATMAN under circumstances in which CHATMAN

presented no threat of death or serious bodily harm to the police officers or any
other individual;

c.

Discharged a firearm at CHATMAN when CHATMAN was unarmed;

d.

Discharged a firearm at CHATMAN when police officers knew or should have

known that CHATMAN was not armed with a gun or any other weapon;

e.

Recklessly and intentionally discharged a firearm at CHATMAN knowing that it

would cause CHATMANs death or serious bodily injury;

f.

Failed to remove FRY from the streets in light of a history of police-related

shootings;

g.

failed to remove TOTH and FRY from the streets in light of their respective
histories of civilian complaints and civil rights litigation;

h.

Despite having the capacity to track patterns of behavior by its officers, failed to
proactively use that capacity so as to preclude defendants TOTH and FRY from
wrongfully causing the death of the plaintiffs decedent.
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i.

ANSWER:

Allowed TOTH and FRY, in conjunction with other employees and supervisory
personnel of the Police Department, to participate in an orchestrated plan or scheme
to cover up or conceal the misconduct of the individual defendant officers in taking
the life of plaintiffs decedent without any lawful justification whatsoever.
This count is not directed at Defendant Officers Kevin Fry and Lou Toth and

Defendants therefore make no answer.

38.
That the aforesaid acts were committed occurred with reckless disregard for the
safety of others, including but not limited to plaintiffs decedent CHATMAN, and constituted
willful and wanton conduct.
ANSWER:

This count is not directed at Defendant Officers Kevin Fry and Lou Toth and

Defendants therefore make no answer.

39.
As described in the preceding paragraphs, the conduct of defendants FRY and
TOTH, acting within the scope of their employment, constituted unjustified and offensive physical
contact, was undertaken willfully and wantonly, and proximately caused injury and death to
CHATMAN.
ANSWER:

This count is not directed at Defendant Officers Kevin Fry and Lou Toth and

Defendants therefore make no answer.

40.
The misconduct described in this Count was objectively unreasonable and was
undertaken intentionally with malice, willfulness, and reckless indifference to the rights and safety
of others, including CHATMAN.
ANSWER:

This count is not directed at Defendant Officers Kevin Fry and Lou Toth and

Defendants therefore make no answer.

41.
As a direct and proximate result of one or more of the above-stated willful and
wanton acts and/or omissions, CHATMAN was shot and died.
ANSWER:

This count is not directed at Defendant Officers Kevin Fry and Lou Toth and

Defendants therefore make no answer.

42.
The misconduct described in this Count was undertaken by defendants TOTH
AND FRY within the scope of their employment such that their employer, the CITY, is liable for
their actions.
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ANSWER:

While this count is not directed at Defendant Officers Kevin Fry and Lou Toth the

Defendant Officers deny committing any misconduct. However, in the event there is a finding in
favor of the plaintiff the City would be responsible under respondeat superior.
43.
As a direct and proximate result of the death of CHATMAN, his mother, plaintiff
LINDA CHATMAN, has and will continue to suffer great loss of a personal and pecuniary nature,
and has been and will continue to be deprived of the society, companionship, friendship, comfort,
guidance, love and affection of her son.
ANSWER:

The Defendant Officers lacks knowledge or information sufficient to form a belief

as to the truth of the allegations contained in this paragraph.

AFFIRMATIVE DEFENSES
1.

Defendant Officers Walker and Chudy are entitled to qualified immunity. At all times

relevant hereto, a reasonable police officer objectively viewing the facts and circumstances that
confronted Defendant Officer Walker and Defendant Officer Chudy could have believed their
reasons to be lawful in light of clearly established law and information that these individual
officers possessed. Accordingly, Defendant Officers Walker and Chudy are entitled to qualified
immunity as to Plaintiffs federal claims.The City is not liable to Plaintiff for any state law claims for which its
employees or agents are not liable to Plaintiff. 745 ILCS 10/2-109 (2012).

2.

Plaintiffs have a duty to mitigate their damages, and any damages awarded to Plaintiff

would be required to be reduced by any amount by which the damages could have been lessened
but were not, due to Plaintiffs failure to take reasonable action to minimize those damages.
3.

Plaintiff is not entitled to attorneys fees for her state law claims. See Pennsylvania Truck

Lines, Inc. v. Solar Equity Corp., 882 F.2d 221, 227 (7th Cir. 1989); Kerns v. Engelke, 76 Ill.2d
154, 166, 390 N.E.2d 859, 865 (1979); Miller v. Pollution Control Board, 267 Ill. App.3d 160,
171, 642 N.E.2d 475, 485 (4th Dist. 1994).
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JURY DEMAND
The Defendant Officers hereby demand a jury trial for all issues so triable.
WHEREFORE, the Defendant Officers respectfully request that this Court enter judgment
in its favor and against Plaintiff, including for costs of defending this suit, and enter any other
relief that this Court deems just and proper
Respectfully submitted,

30 N. LaSalle Street, Suite 900

Chicago, Illinois 60602
(312) 744-1056
(312) 744-6566 (FAX)
ATTY. NO. 6302566

/s/Tiffany Y. Harris
Tiffany Y. Harris
Senior Counsel

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LINDA CHATMAN as Special Administrator of
the Estate of CEDRICK CHATMAN, deceased,

)
)
)
Plaintiff,
)
)
vs.
)
)
CITY OF CHICAGO, a municipal corporation,
)
LOU TOTH, KEVIN FRY, and others not presently )
known to Plaintiff,
)
)
Defendants.
)

Case No. 13 CV 05697

JUDGE GETTLEMAN
Magistrate Judge Brown

NOTICE OF FILING AND CERTIFICATE OF SERVICE

TO:

BRIAN W. COFFMAN
Coffman Law Offices
2615 N. Sheffield, Ste. 1
Chicago, IL 60614
(via CM/ECF System)

MARK F. SMOLENS
Law Office of Mark F. Smolens
1627 Colonial Pkwy.
Inverness, IL 60067
(via CM/ECF System)

All attorneys of record (via CM/ECF System)

12

RICHARD R. MOTTWEILER
NICOLE L. BARKOWSKI
Mottweiler & Associates
1627 Colonial Parkway
Inverness, IL 60067 (via CM/ECF System)

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PLEASE TAKE NOTICE that on this 10th day of February, 2015, I have caused to be
e-filed with the Clerk of the United States District Court for the Northern District of Illinois,
Eastern Division DEFENDANT OFFICERS ANSWER TO PLAINTIFFS AMENDED
COMPLAINT, AFFIRMATIVE DEFENSES, AND JURY DEMAND, a copy of which is
herewith served upon you.
I hereby certify that I have served this notice and the attached document by causing it to be
delivered by electronic means to the person named above at the address shown this 10th day of
February, 2015.
Respectfully submitted,

30 N. LaSalle Street, Suite 900

Chicago, Illinois 60602
(312) 744-1056
(312) 744-6566 (FAX)
ATTY. NO. 6302566

/s/ Tiffany Y. Harris

Tiffany Y. Harris
Senior Counsel

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