Suit: Driver's 2013 death on I-88 an 'execution'

CHICAGO – The officers involved in the death of an unarmed Toledo, Ohio, man shot five times during a traffic stop in Whiteside County lied about the danger they were in to justify his “execution,” the family of the dead man says in a civil suit now filed in federal court.

Shane D. Cataline, 30, was killed by a state conservation police officer on Interstate 88 west of Rock Falls, at Albany and Burns roads, in November 2013.

The Whiteside County state’s attorney ruled the shooting justified, and Illinois Department of Natural Resources Conservation Police Officer Steven Francisko was awarded 6 months later with a Medal of Honor for saving the life of State Police trooper Luke Kuehl, who provided him backup.

Cataline drove his van into Kuehl’s squad car. Whether the action was deliberate, and whether Kuehl was pinned by the van or was able to jump clear are among the issues at the heart of the suit.

[ Click here to see police footage from the incident. ]

But first, there’s a complicated path to the federal case that could affect whether the suit, which is facing a motion to dismiss, will be allowed to proceed:

Rebecca Gysan, Cataline’s mother, filed a wrongful death suit in Cook County Court in Chicago on March 5, 2015 – 1 year and 4 months after the shooting – claiming her son’s civil and constitutional rights were violated by police actions taken up to and including his fatal shooting.

The defendants were IDNR Director Marc Miller, Whiteside County Sheriff Kelly Wilhelmi, former Whiteside County state’s attorney and now Circuit Court Judge Trish Joyce and Rock Island County Sheriff Gerald Bustos.

Then-ISP Director Hiram Grau and Kuehl were named as “respondents in discovery,” a designation that gave Gysan’s attorney 6 months to obtain information on whether the two should become defendants.

Gysan hired a new attorney, James Dolbeare, who, on March 24, 2016, filed a motion to dismiss that case, with permission to refile. The request was granted, and on April 4, 2016, rather than amending the first suit, a new, nearly identical suit was filed, adding Grau and Kuehl, now a special agent with the ISP’s Zone 2 Investigations Unit, as defendants.

Because the suits claimed only that Cataline’s constitutional rights had been violated, and not that any state law had been broken, Attorney General Lisa Madigan, whose office represents the state employees, had both cases moved to federal court in Chicago.

By this time, Wilhelmi, Joyce and Bustos no longer were defendants.

On Nov. 21, 3 years after the shooting, Gysan amended her first suit to add Kuehl and Grau.

Francisko and Kuehl were named as the officers involved, and Grau and Miller were named individually, and in their capacities as the officers’ department heads, responsible for their agency’s policies and training.

All four are represented by Assistant Attorney General T. Andrew Horvat, of the office’s civil rights division.

On Dec. 14, the second suit also was amended. On Dec. 16, the two suits were combined into one complaint that is being heard by Judge Jorge Alonso.

On Dec. 29, Horvat filed a motion seeking to dismiss the suit in its entirety, and failing that, to dismiss the claims against Kuehl, Grau and Miller.

The complicated timeline matters: In his motion, Horvat argues that it is too late to go after Grau and Kuehl – the statute of limitations, set in motion when the suit first was filed in state court, required they be sued before 2 years from the shooting had passed.

Gysan’s attorney argues, however, that their inclusion in the suit was timely because information that he says was uncovered during the course of the investigation – namely, that the two conspired to cover up the actual circumstances behind the shooting – reset the clock to the time of that discovery.

Horvat also argues that the claims against Grau and Miller should be dismissed because Gysan cannot show that they are liable for Cataline’s death, either by their actions or failure to act, simply because of their departments’ respective policies and training procedures.

More motions and responses may be coming. A status hearing is set for July 5.

The background

Cataline was killed Nov. 22, 2013, after being questioned twice by Francisko, a conservation police officer since 1999 who is based in Rock Island, and Kuehl, who at the time had been a trooper less than 4 months. (Conservation police officers have full statewide police authority and are trained law enforcement officers.)

According to the lawsuit and various published accounts of the day:

Nov. 22 was opening day of deer hunting season. Francisko was patrolling rural Whiteside County and was in Albany around 10:45 a.m. when he saw a van with Ohio plates stopped on the side of the road and decided to investigate. He called dispatch to report the stop.

According to the lawsuit, Francisko was wearing a baseball cap and driving a pickup truck “and was not otherwise identifiable in appearance as an officer of the law.”

According to Joyce’s investigation, however, both vehicles were clearly marked as police squads and both officers were clearly dressed as police.

Francisko identified himself, asked for Cataline’s ID and had a short conversation with him. Cataline, who was alone in the van, said that he was on his way to the San Francisco area, where he was starting a new job as a software developer, and that he pulled over because he was tired.

Francisko thought Cataline seemed confused.

At 10:50 a.m., Kuehl, who heard Francisko’s call to dispatch, arrived as backup, and the two approached Cataline’s van. He was on the phone and Francisko caught the tail end of the conversation, when Cataline said something like, “This isn’t gonna end well.”

Francisko was not aware that Cataline was speaking with 911 about the two officers. He thought Cataline’s remark was strange, and reminded Cataline that he was a police officer.

He told Cataline he was free to go, then asked to search his van. Cataline said no, Francisko asked again, again was told no, and Francisko allowed him to leave.

After the three went on their way, an ISP dispatcher told Kuehl about Cataline’s 911 call, in which he said, “I’m in a lot of trouble right now. ... I think I’m going to be disappearing or something,” before hanging up.

Kuehl decided to do a “wellness check” on Cataline, and Francisko responded as his backup.

The two headed east on Interstate 88, spotted the van and, after observing Cataline commit two traffic violations – improper lane usage and failure to yield to a stationary emergency vehicle – pulled him over at 11:10 a.m.

Kuehl parked behind the van, Francisko parked in front of it, and Kuehl activated his tie clasp microphone with audio and video.

They approached the van, Kuehl opened the driver’s side door and they said they needed to talk about the 911 call. They told Cataline three times to turn off the van and hand over the keys, but at 11:12, Cataline instead threw his van into reverse, causing Kuehl to lose his grip on the door and fall back into the eastbound lane of traffic.

Cataline made an abrupt U-turn, and Francisko and Kuehl ran back to their vehicles. Francisko saw a semi approaching, and began waving his arms to warn oncoming traffic of the van, which was going the wrong way.

The ISP released a video of the stop and subsequent shooting, taken from Kuehl’s squad car. It shows the two men asking Cataline to shut off the van, and Cataline peeling off. Neither Kuehl nor Cataline can been seen, but the crash is heard, followed by Kuehl yelling for help. Francisko jumps on the hood of the squad car and fires, then pulls Kuehl away as a semi drives by slowly.

Accounts vary significantly at this point.

According to Joyce’s findings, seconds later, as Kuehl was reaching inside his car to make a radio call, Cataline rammed his van into the squad car at such a high rate of speed that it pushed the car off the shoulder and into the ditch. Kuehl was pinned, immobilized, with blood coming from his mouth.

Francisko heard the van revving and the tires squealing and saw a cloud of smoke coming from the tires as Cataline continued to accelerate, with Kuehl still pinned.

At 11:12:20, 16 seconds after Cataline threw the van into reverse, Francisko jumped onto the hood of Kuehl’s car and fired five rounds into the van’s closed driver’s side window.

After the fifth shot, the acceleration lessened. All the while, Kuehl was screaming for help.

Francisko then pulled Kuehl – bleeding from the mouth and arm – from between the two vehicles and walked him to the bed of his pickup. He radioed for help before checking on Cataline, who was dead.

Joyce ruled the use of deadly force appropriate because Cataline was using a van in “a manner which was likely to cause imminent death or great bodily harm” to Kuehl.

Francisko later was awarded for his actions.

On June 20, 2014, at an IDNR awards ceremony in Springfield, Grau awarded Francisko the Law Enforcement Medal of Honor – the highest award presented to any Illinois law officer and the first such award given to a conservation police officer – for saving Kuehl’s life.

At the same ceremony, Miller awarded Francisko the Medal of Valor, also for pulling Kuehl to safety. It was Francisko’s second Medal of Valor.

In general, Gysan’s lawsuit does not dispute the timeline of the events, only the motivations behind the actions.

According to the suit:

Kuehl and Francisko acknowledged over the radio that Cataline made the 911 call because he was afraid of the officers, and that they had no probable cause to pull him over.

They were authorized by dispatch to use “welfare check” as an excuse, and while looking for the van, placed calls to three other agencies looking for a K9 unit to help with the “wellness check.”

They spotted Cataline, pulled him over, and Francisko used his truck to block his van.

Kuehl approached Cataline, and when he refused to hand over his keys and get out of the van, Kuehl attempted to put him in a headlock. Cataline, who feared for his life, made the U-turn to get away, but was forced off the roadway and into the driver’s side of Kuehl’s squad car by an oncoming semi.

Kuehl was not pinned – he jumped clear before the impact and rolled away, while Francisko jumped up on the hood of the squad car and shot Cataline five times in the head and chest, at point-blank range without saying “stop” or “freeze” or giving any warning.

The autopsy shows Cataline was shot while his hands were in the air, and the driver of the oncoming semi, Sean Dale, will testify that Kuehl wasn’t pinned and was in no danger. The shooting was an execution, the suit says.

The two then concocted a story to justify the shooting, which constitutes conspiracy. The discovery of the conspiracy alters the timeline for the statute of limitations to begin to run.

Cataline’s Fourth and 14th Amendment rights were violated when he was seized and searched without a warrant or probable cause, was unlawfully detained; and his Fifth and Eighth Amendment rights were violated when he was subjected to excessive force.

In addition, the officers’ actions constitute false imprisonment, battery and assault.

By agreeing between themselves and “other as yet unidentified officers,” the two committed conspiracy, conspiracy to deprive Cataline of his constitutional rights, intentional infliction of emotional distress, the suit says.