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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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THE COURT: I have given some thought to this case,
obviously, before today and appreciate your arguments and
wanted to make sure that I understood the case as fully as I
think I do now.
Again, I did review the complaint pretty carefully
when I was looking at your briefs, and I think I can make a
few remarks right now in connection with the ruling.
This case is arguably an extraordinary one. It was
April of 2004 when Mrs. Koschman's only son was killed in an
early morning confrontation with Richard Vanecko.
Mrs. Koschman is suing Mr. Vanecko in this case
here today for wrongful death.
She alleges further that all of the City and
State's Attorney defendants acted in concert to deprive her
of access to the courts and to deprive her of a prompt,
thorough, and honest investigation of the circumstances
surrounding her son's death.
She was denied the right to access to the courts,
she says, until Special Prosecutor Dan Webb obtained an
indictment and then a conviction years after the incident.
There isn't any dispute that Mrs. Koschman was not
entitled to demand prosecution. Mr. Gallagher has made that
point, and it's really unchallenged.
She was entitled not to be deprived of access to
the courts. And for purposes of this ruling, the Court is
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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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going to assume that she, in fact, had a federal right to a
prompt, thorough, and honest investigation of the
circumstances surrounding her son's death and one that did
not impede her from going forward in court and that she did
not get it.
If her allegations are to be believed, many of the
defendants knew or should have known very early on of
Mr. Vanecko's role in the killing of her only child. They
chose deliberately not to investigate it or to exaggerate,
twist, or even manufacture evidence that minimized or
exonerated Mr. Vanecko's involvement.
Documents and files that should have been created
and maintained either do not exist or mysteriously
disappeared.
The defendants did not cover themselves in glory
here, at least some of those who are identified in the
complaint.
Public servants are all too aware of the public
relations and political implications of their decisions.
Good public servants, even those who need to stand for
reelection, look past those considerations and follow the law
even when that is not the popular, convenient, or politically
savvy thing to do.
So I think I must say here, with the plaintiff's
lawyers, that, "Mama, don't tell your kids to be prosecutors
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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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unless they are going to be honorable ones, careful ones,
honest ones, unless they are not going to manufacture
evidence, unless they are not going to conspire with police
to cover things up, unless they are going to say, 'I don't
care who the individuals involved were; I am going to
investigate this case just as I would if the person were a
complete stranger to me or a gang member or a known felon. I
will investigate every person fairly and honestly.'"
As Ms. Koschman sees things in this case, every
state actor who established impediments to her lawsuit
against Vanecko is liable for doing so.
She has sued Mr. Vanecko here, as I pointed out,
for wrongful death; but, anticipating a possible statute of
limitations defense, she alleges that if the wrongful death
case was filed too late, that has to be laid at the door of
the City and County defendants as well.
The question before this court at this stage that
must be focused on is whether Mrs. Koschman has stated a
timely federal claim.
If she has no timely federal claim, the court
relinquishes jurisdiction over all the state claims that she
has pleaded, including a portion of the conspiracy claim, the
intentional infliction of emotional distress claim, and, of
course, the claim against Mr. Vanecko.
The parties have disputed whether she has alleged a
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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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federal claim at all. They focus chiefly on the Seventh
Circuit's decision in Bell v. City of Milwaukee where the
City defendants concealed evidence that a city police officer
had fatally shot the plaintiff's son. The concealment in
that case was successful, and the Bells effectively lost
their case before the truth was ultimately revealed when one
of the coconspirators owned up to his wrongful conduct.
There are differences between Bell and this case.
Mr. Bell was killed by a city officer. Mr. Vanecko was
killed by a private citizen.
And as the Seventh Circuit has interpreted Bell, it
involved circumstances in which the City concealed the only
available evidence of the wrongdoing.
Plaintiff is correct that there is language
suggesting this is not quite accurate, but that is indeed the
way more recent cases have construed Bell.
Mr. Dickerson pointed out that if you read the
facts of Bell carefully, it is perhaps fair to say that only
the defendants in that case had any information concerning
the truth about the killing.
An important distinction here is that there were
other witnesses, including Mr. Koschman's friends who were on
the scene during the altercation, who could have provided
information in support of a wrongful death action presumably
years ago.
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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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In any case, again the federal claim is brought
under Section 1983, and the statute of limitations for that
claim is just two years.
Regardless of how Bell is construed, this court
concludes that Mrs. Koschman's federal claim accrued when she
knew about the alleged coverup.
Defendants argue that this happened back in 2004
when Detective Ronald Yawger effectively told Mrs. Koschman
that she was up against forces that she could not defeat. So
their argument is she knew about that corruption from that
time on.
They point as well to rumblings in the press about
Mr. Vanecko's relationship to former Mayor Daley and the
possibility that that relationship had influenced the police
and the prosecutors, and they point out that she had access
all along to Mr. Koschman's friends, who observed the fatal
blow.
The police allegedly planned to introduce
impeachment evidence against those witnesses presumably or
could have or might have had they been brought to the court,
but they certainly didn't attempt to otherwise eliminate the
witnesses, and those witnesses remained available to
Mrs. Koschman all along.
The Court need not wade into that thicket to decide
the limitations issue. Whatever Mrs. Koschman knew as of
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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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2004, it's impossible for me to escape the conclusion that
she knew everything she needed to know about the coverup no
later than December 2011.
At that time she petitioned the circuit court for
appointment of a special prosecutor. And I looked at the
petition yesterday in detail once again and again this
morning, and she laid out in that petition essentially all of
the same facts she alleges here.
The court -- the circuit court, that is -- granted
her motion. Special Prosecutor Dan Webb swiftly indicted
Mr. Vanecko, and he has now pleaded guilty.
Mr. Webb's activities and the additional press
attention that they generated have underscored
Mrs. Koschman's allegations of police and arguably State's
Attorney wrongdoing, but it simply can't be that
Mrs. Koschman could not have filed her wrongful death case
against Mr. Vanecko until he was convicted.
Wrongful death actions are filed regularly with or
without corresponding criminal charges. Indeed, had
Mr. Vanecko been acquitted, that would not defeat
Mrs. Koschman's action. Had Mr. Vanecko been acquitted, she
still could have sued him, and the acquittal might not even
have been admissible in a civil action in state court.
As Mr. Tobin pointed out a moment ago, had such a
case been filed, the false police reports might not have been
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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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admissible -- was that Mr. Tobin or Mr. Dickerson who made
that point?
MR. TOBIN: It was I, Judge.
THE COURT: All right. It's possibly that those
reports wouldn't have been admissible at all.
It's not clear to me that police would have been
called as witnesses other than as impeachment witnesses.
Certainly they could not have been called as substantive
witnesses to the event, and their testimony about what
actually happened would have been hearsay.
As this petition reveals, the petition filed in
December of 2011 by the excellent lawyers who are here before
me today, Mrs. Koschman had the information she needed to sue
Mr. Vanecko in 2011.
In fact, not only did she have that information,
but she had access to the courts at that time. This claim is
about a denial of access to the courts, but she had access to
the courts. She exercised her right of access to the courts
by filing the petition in the Circuit Court of Cook County.
It's true that she might not have been a wise -- it
might not have been effective to go ahead with a wrongful
death case at that point.
It's also true that, as Mr. Gallagher points out,
we are not talking about what's effective or what's in
somebody's mind. We are talking about what did someone know
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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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and what did they have reason to know and when? That's what
the statute of limitations is all about.
But it would have been possible for Mrs. Koschman
to file her wrongful death case, say, in December '11 and ask
that it be stayed while Mr. Webb engaged in his
investigation.
Indeed, all of us here have -- many of us here -- I
think probably most of you lawyers have had involvement in
civil rights cases where that's exactly what happens. Some
wrongful -- some false arrest claim is filed against an
officer or an excessive force claim is filed against an
officer or there is another claim of misconduct of one kind
or another, and lawyers come forward and say, but the
criminal case is pending. Can we stay this? And the court's
answer -- at least my answer -- I am sure my colleagues' as
well -- is always, yes, of course we will do that.
You file the lawsuit because you don't want to lose
the possibility of bringing a claim, but then you put it on
hold while criminal investigation proceeds. And that could
have happened in this case.
Mr. Bowman has made the argument that what triggers
the statute of limitations is the sea change, for example, in
the Bell case, that Krause came forward and said, I have got
to own up to my involvement in this conspiracy.
Even if we were to adopt a test that respectively
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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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is as fuzzy as that one, the sea change in this case has to
have happened before 2011. Otherwise all of the
circumstances laid out in that petition would not have been
available to the plaintiff.
It can't be that the sea change in this case was
the indictment or conviction of Mr. Vanecko. Those elements
weren't necessary at all for a wrongful death action. You
don't need those things for a wrongful death action.
The only comment I want to make in addition is
that -- we have all talked about the Bell case at some
length. The case law since Bell -- the Vasquez case, the
Cannon v. Burge case, Thompson to some degree, the Cefalu
case that got mentioned, none of those cases is helpful to
the plaintiff. There is very little law that would support
the notion that the plaintiff was entitled to choose not to
proceed until there had been some other process, indictment,
conviction in another court.
The time in which the statute of limitations on her
federal claim began to run was in December 2011. And
therefore, this lawsuit filed in 2014 is -- the federal
claims are barred by the statute of limitations.
Now let me point out that when the district court
dismisses federal claims, it does so without prejudice to all
of the state law claims. That includes a wrongful death
action against Mr. Vanecko.
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Koschman v. City of Chicago, et al. 14C2041 (8/28/14)
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It may be that some state court will see things
differently with respect to what Mrs. Koschman knew or when
she knew it vis--vis the wrongful death case.
My only -- the only decision I am making right now
is that she knew or should have known about the denial of
access claim, which is the federal claim, in December 2011.
So the complaint in this case is dismissed without
prejudice to all of the state law claims, which may proceed
in any forum that has jurisdiction.
And I would encourage all of you, in light of the
sad circumstances that bring us all together today, to at
least talk about whether there can be a resolution of those
claims.
Thank you.
ALL COUNSEL: Thank you, your Honor.
(An adjournment was taken at 1:07p.m.)F