BATAVIA – A woman who was arrested on a misdemeanor prostitution charge in 2016 is suing the city of Batavia, two police officers and an undercover ICE officer seeking $10 million in damages in a federal lawsuit.

The plaintiff, Jinmei Zhang, now 59, alleged in the lawsuit that the ICE officer pointed her hand to his penis, and when she refused, masturbated in front of her.

The lawsuit also alleges that officers unlawfully seized $6,000 in cash from her, and filed a false police report of prostitution which led to a false criminal complaint, in violation of her Fourth Amendment rights against unreasonable searches and seizures.

Zhang’s complaint names the city of Batavia, Police Det. Kevin Bretz, Deputy Chief Shawn Mazza and undercover ICE officer Michael Schuster as defendants.

Attorney Jarad Holmes, who is representing the city and the two officers, said he could not comment.

Zhang originally filed suit in 2018 representing herself, but now is represented by attorney Julie Herrera, who filed an amended complaint on her behalf earlier this year.

Superb Spa

Zhang was employed as a massage therapist at Superb Spa, 30 N. Island Ave. – which is now closed – where the business owner had a dispute with the landlord, who enlisted the help of Batavia police, the lawsuit stated.

Mazza and Bretz came to Superb Spa to speak to the owner on March 8 and April 6, but he was not there and they spoke to Zhang instead, the lawsuit stated.

Bretz and Mazza allegedly contacted U.S. Immigration and Customs Enforcement, ICE, specifically members of Homeland Security Investigations, and met before they arrived at Superb Spa where they already planned to arrest Zhang, the lawsuit stated.

On May 12, 2016, Schuster came into the spa posing as a customer while Bretz and Mazza waited outside, the lawsuit stated.

Schuster paid $60 for a one-hour massage, then called Bretz and Mazza to arrest her for prostitution, the lawsuit stated.

According to the lawsuit, the three claimed in a criminal complaint that Zhang had “knowingly agreed with another to perform a sexual act … for money.”

Instead, the lawsuit alleged that Schuster made sexual advances to Zhang during and after the massage, which she refused.

“After Zhang finished Schuster’s one-hour massage and went to leave the room, he grabbed her hand and yanked her back into the room, pointed to his penis and tried to pull her hand toward it,” the lawsuit alleged. “She tried to (and was eventually was able to) pull away and said and gestured ‘no’ repeatedly. Schuster then masturbated in front of Zhang.”

Prostitution charge not prosecuted

The prostitution criminal complaint ended Jan. 12, 2017 when the Kane County State’s Attorney’s Office declined to prosecute Zhang, the lawsuit stated.

“The reason my client was not prosecuted was … she didn’t do it,” Herrera said. “They did not have any evidence.”

According to a transcript of that a pretrial conference in court that day, Kane County Judge James Hallock asked if the defense was ready for trial and public defender Jeff gasturano replied that he was.

But when Hallock asked Kane County Assistant State's Attorney Ryan Merkel if the state was ready, he repiled, "No, Judge. ... At this time, we would make a motion to nolle pros," according to the transcript.

Nolle pros is a shortened form of nolle prosequi, which is Latin, which means "to be unwilling to pursue."

Hallock then struck the trial date, which had been scheduled for the following Monday, according to the transcript.

As to the details of why the charge was not prosecuted, Herrera said she planned to take depositions – sworn statements – from Merkel and another Kane County Assistant State’s Attorney, about the decision not to prosecute Zhang.

The complaint also alleged that Zhang suffered embarrassment by being arrested and public humiliation when police sent a news release with her photo to local media agencies; that she lost $6,000 of her money to police and more to pay a criminal defense attorney; the cost of going to court six times and the cost of having her record expunged.

The officers and the city responded in a court filing denying, among other things, that Zhang’s arrest was unreasonable or that they had no probable cause; that they violated her Fourth Amendment rights or her right to due process or that she is entitled to a judgment in her favor.

Gender violence complaint

In a separate count in the same complaint, Zhang alleged gender violence against Schuster, in that, “His act of grabbing her hand constituted a battery. … His act of masturbating in front of her caused her to reasonably apprehend another (perhaps worse) battery. … When Schuster did these particular things to Zhang, he was not acting in his official capacity as a federal law enforcement officer. … Schuster did these things to Zhang because she was a woman.”

The lawsuit alleges that Schuster is liable to Zhang under the Illinois Gender Violence Act, and she should be awarded actual damage, as well as for emotional distress, punitive damage and attorney’s fees.

In an Oct. 26 filing, U.S. Attorney Kathleen Przywara asked the judge to substitute the United States as a defendant instead of Schuster.

The filing states that the Federal Tort Claims Act provides that “a suit against the United States shall be the exclusive remedy for persons with claims for damages resulting from the negligent or wrongful acts or omissions of federal employees.”

The filing states that the Attorney General’s designee “has certified that Schuster was acting within the scope of his employment as a federal government employee at the time of the incident.”

Przywara did not respond to a voice mail message seeking comment.

“We said he was not acting as law enforcement – sexual pleasure was a side effect of the job,” Herrera said. “The effect of substituting the United States as defendant, if we win against him, he would not have to pay anything, the U.S. would pay, but not punitive damages. If we win against him, he might have to pay.”

Herrera said police took advantage of her client, a woman from China who spoke no English, was living at the spa where she worked and did not have a bank account, which is why she kept her money there.

“The statute they used to seize her money is related to drugs,” Herrera said. “There is zero allegation that she had anything to do with drugs of any kind. … This is beyond the bounds of what is legal.”

Kane County