Opinion
No. 00 C 0998
November 21, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff, Ahmad Colone ("Colone"), filed this civil rights complaint under 42 U.S.C. § 1983 against defendants Inspector Ronnie Burge ("Burge"), Officer Samuel Bunville ("Bunville"), Lieutenant Fred Frego ("Frego"), Officer Kevin Carter ("Carter"), Officer Scott Gansert ("Gansert") (collectively "Dolton Police Officers"), the City of Dolton and the City of Harvey, pursuant to 42 U.S.C. § 1983, alleging in Counts I and II excessive force, failure to protect, and false arrest against the Dolton Police Officers in their individual capacities, and in Count III that the City of Dolton failed to train its officers on the use of deadly force and the use or supervision of a canine. In Count V plaintiff asserts state law claims of assault, battery, false arrest and intentional infliction of emotional distress against the Dolton Police Officers and the City of Dolton and a state law battery claim against the City of Harvey. Before the court are the motions of the Dolton Police Officers, the City of Dolton and the City of Harvey for summary judgment. The court has jurisdiction over the claims pursuant to 28 U.S.C. § 1343 and 1367. For the reasons set forth below, the court grants summary judgment in favor of the Dolton Police Officers and the City of Dolton on the federal law claims and dismisses the state law claims against all of the defendants without prejudice for lack of jurisdiction.
reviewing the record, the only allegation of Officer Carter's involvement is that he transported Derrick Martin to the Dolton Police Department. (Def. L.R. 56.1 ¶ 9.) Since Martin is no longer a party to this case, judgment is entered in Carter's favor.
This court previously dismissed Count IV in its June 7, 2002 order.
SUMMARY JUDGMENT STANDARDS
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS STATED IN A LIGHT MOST FAVORABLE TO PLAINTIFF
On or about November 20, 1999, Colone and two of his friends, Derrick Martin ("Martin") and Brentell Falkner ("Falkner"), were at a car wash in the City of Dolton washing Colone's car. (Pl. Resp. to Def. L.R. 56.1 ¶ 25.) Also at the car wash was Burge, not in uniform at this time, having his unmarked police car washed. (Pl. Resp. to Def. L.R. 56.1 ¶ 24.) While at the car wash, Burge claims to have heard three or four voices talking about drugs, gangs, and/or a homicide that allegedly occurred in Dolton earlier that morning. (Def. L.R. 56.1 ¶¶ 25-27.) Burge looked at Colone and his friends and claims to have recognized one of the individuals (Falkner) as a known gang member in the City of Harvey. Burge then got on his radio and requested that a marked vehicle conduct a "field interrogation" of the individuals because he believed the three friends were possible suspects in the homicide. (Def. L.R. 56.1 ¶ 47.)
Colone maintains that the voices Burge claims to have heard did not belong to Colone or his friends. Colone submits that he and his friends were not talking about gangs or the homicide and that some "boys" did solicit them for drugs, but that Colone refused them. (Pl. Resp. to Def. L.R. 56.1 ¶ 25.)
Burge worked with the Harvey Police Department from 1982 through 1995. (Def. L.R. 56.1 ¶ 31.)
During a field interrogation, a field interrogation card is filled out to acquire names, addresses, and a description of identifying information for that person.
Shortly after Colone, Martin and Falkner left the car wash, Bunville responded to the request for a field interrogation and turned on his sirens to pull Colone's car over. (Def. L.R. 56.1 ¶ 56.) During the process of pulling over, Colone maintains, Falkner saw either Bunville or Burge, who was still in the area, pull out a gun. (Pl. Resp. to Def L.R. 56.1 ¶ 56.) Falkner, who was driving Colone's car, feared what the officers were going to do next, and, instead of pulling over, sped away. (Pl. Resp. to Def. L.R. 56.1 ¶ 56-57.) Observing that the car was not stopping, Bunville went to the radio to inform other officers of the pursuit. (Def. L.R. 56.1 ¶ 58.)
A car chase then ensued, with multiple jurisdictions becoming involved. This chase lasted approximately 20 to 30 minutes. (Pl. Resp. to Def. L.R. 56.1 ¶ 73.) During the course of the pursuit the police fired shots, and at least one shot hit Colone's car. (Def. L.R. 56.1 ¶ 74; Pl. Resp. to Def. L.R. 56.1 ¶ 75.) The chase subsequently ended when Falkner stopped the car in the middle of the street at 150th and Washington in Harvey. (Def. L.R. 56.1 ¶ 80.) Colone, who was in the front passenger seat of his car, got out and ran to the basement of an apartment complex he was familiar with. (Def. L.R. 56.1 ¶ 81.) Colone went into the basement laundry room of the complex and hid under a table. (Def. L.R. 56.1 ¶ 83.)
Martin and Falkner also apparently fled the automobile.
Colone waited under the table for as long as ten minutes, when Officer David Miro ("Miro") of the City of Harvey Police Department entered with his canine unit. (Def L.R. 56.1 ¶ 86.) (Miro had become involved in the chase after he heard over the radio that there was a pursuit of homicide suspects. (Def. L.R. 56.1 ¶ 88.)) When Miro entered the basement, he stated "I got a dog, come out or I'm going to send him in." (Def. L.R. 56.1 ¶ 90.) Colone maintains that after this announcement, he began to come out from under the table. Nevertheless, Colone maintains that Miro ordered his dog, apparently in German, to attack him. Miro's canine did attack Colone, and Miro placed Colone in handcuffs. (Def L.R. 56.1 ¶¶ 94, 95.)
Colone, who claims to have been "handled unreasonably roughly" at this time, was brought out of the basement and, according to Colone, "grabbed by [his] neck and [thrown] [in a Dolton] police car." (Pl. Resp. to Def L.R. 56.1 ¶ 103.) Gansert and Bunville took Colone into custody. Frego, the supervising officer, approved the activities that occurred. Three days after the incident, Falkner was captured and given traffic citations for fleeing and eluding, reckless driving, driving in the wrong lane and speeding. (Def. L.R. 56.1 ¶ 113.)
DISCUSSION
In Count I, Colone alleges that the Dolton Police Officers, in their individual capacities, violated his Fourth Amendment rights by using excessive force. In Count II, Colone alleges that the Dolton Police Officers, in their individual capacities, violated his Fourth Amendment rights by falsely arresting him. In both Counts I and II, Colone claims that the Dolton Police Officers failed to protect him from constitutional deprivations. In Count III Colone alleges that the City of Dolton was deliberately indifferent to his constitutional rights by failing to train its officers in the use of deadly force and the use or supervision of a canine. In Count V, Colone alleges state law assault, battery, false arrest and intentional infliction of emotional distress claims against the Dolton Police Officers and the City of Dolton. In Count V Colone also alleges a state law battery claim against the City of Harvey.
A. Count I: Excessive Force
While the Fourth Amendment does prohibit the use of excessive force during the execution of a seizure, Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000), it does not prohibit otherwise "unreasonable, unjustified, or outrageous conduct in general." Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992). A seizure occurs when a suspect is physically touched by police or when he or she submits to a show of police authority. California v. Hodari D., 499 U.S. 621, 626-27 (1991). To determine whether the force used in a seizure is "excessive," the court must examine the totality of the circumstances to "determine whether the intrusion on the citizen's Fourth Amendment interests was justified by the countervailing government interests at stake." Id.
A seizure undoubtedly occurred in this case, as Colone was eventually taken into police custody. Colone, however, argues in his Complaint that two specific police actions constituted excessive force: (1) the shooting at Colone's automobile while being pursued by police, and (2) the use of a police dog to effectuate Colone's arrest.
1. Shooting at the automobile
Colone's excessive force claim based on the shooting of his automobile fails as a matter of law because the shooting did not result in a seizure. The testimony is undisputed that after the shots were fired, Colone's automobile continued and did not submit to the police show of force, and that Colone was not ultimately taken into custody until the chase ended. This "pre-seizure conduct is not subject to Fourth Amendment scrutiny." Carter, 973 F.2d at 1332; Tom v. Voida, 963 F.2d 952, 956 (7th Cir. 1992) (finding that seizure did not occur until suspect was physically touched by the officer, even though officer was previously attempting to touch the suspect and was unsuccessful); see also, Hodari D., 499 U.S. at 630 (Stevens, J., dissenting) ("In its decision, the Court assumes, without acknowledging, that a police officer may now fire his weapon at an innocent citizen and not implicate the Fourth Amendment — as long as he misses his target."); United States v. Bradley, 196 F.3d 762, 768 (7th Cir. 1999) (concluding that seizure occurred when police officer fired shot at car because driver stopped after finding out that he had been shot at); Bella v. Chamberlain, 24 F.3d 1251, 1255-56 (10th Cir. 1994) (concluding that shots fired by officer that hit helicopter did not constitute a "seizure" because the shots did not cause submission or otherwise stop the suspect); Cole v. Bone, 993 F.2d 1328, 1332-33 (8th Cir. 1993) (concluding that no seizure occurred when shots were fired at suspect but missed and did not cause suspect to stop; instead, seizure occurred when the suspect was later actually hit by one of the shots). The shooting itself did not result in a seizure, so standing alone, it cannot constitute excessive force under the law. Moreover, this conduct would not be relevant to an inquiry concerning whether the seizure that occurred when Colone was taken into custody was excessive under the totality of the circumstances because the conduct does not speak to whether the seizure itself was reasonable. See Keys v. City of Harvey, No. 92 C 2177, 1995 WL 247989, at *4 (N.D. Ill. 1995) (Nordberg, J.) ("pre-seizure conduct of the police and information that the police have gathered pre-seizure may be relevant to the question of the reasonableness of the force used to seize someone, but it cannot itself provide the basis of the Fourth Amendment violation."). Thus, Colone's excessive force claim based on the shooting of his automobile fails as a matter of law.
2. Seizure involving the canine unit
Colone also advances an excessive force claim against the Dolton Police Officers based on the use of the canine unit to seize Colone. "Section 1983 creates a cause of action based upon personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional deprivation." Sheik-Abdi v. McCleellan, 37 F.3d 1240, 1248 (7th Cir. 1994). The test for establishing personal liability is as follows:
[A]n official satisfies the personal responsibility requirement of section 1983 . . . if the conduct causing the constitutional deprivation occurs at [his] direction or with [his] knowledge and consent. That is, he must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye. . . In short, some causal connection or affirmative link between the action complained about and the official sued is necessary for section 1983 recovery.Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996) (internal citations and quotations omitted).
Colone's excessive force claim against the Dolton Police Officers fails because none of the named officers were involved in the canine's apprehension of Colone. It is undisputed that the City of Dolton does not have a canine unit. (Def. L.R. 56.1 ¶ 99.) Moreover, the canine unit and officer involved in the seizure were from the City of Harvey police force. (Def. L.R. 56.1 ¶ 94.) Colone alleges that City of Dolton Police Officers are liable because they were either at the scene when the canine seizure occurred or were nearby. Colone, however, brings forth a mere scintilla of evidence that the named Dolton Police Officers were present when the canine seizure occurred. Colone relies on the testimony of Miro, the City of Harvey canine officer. Miro testified that, although he was not entirely sure, he believes a state trooper and possibly two other officers were present when he went into the basement to retrieve Colone. (Miro Dep. at 26-27.) No evidence is presented that any of these officers were the Dolton Police Officers named in Count I. Moreover, no evidence is brought forth that any of these officers supposedly at the scene had any causal connection to the alleged excessive force the canine used, or in any other way facilitated or approved the canine's conduct. The only evidence Colone submits concerning any Dolton Police Officers at the scene is that Bunville and Gansert transported Colone to jail and Frego was their supervisor. Thus, without reaching the issue of whether the force used by the canine was excessive, the court concludes that the evidence that the Dolton Police Officers were personally involved is insufficient to create a triable issue of fact that any of them knew about, facilitated, approved, condoned or turned a blind eye to Miro's conduct.
B. Count II: False Arrest
"An essential element to any § 1983 claim for unlawful arrest is the absence of probable cause." Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998); Jones by Jones v. Webb, 45 F.3d 178, 181 (7th Cir. 1995). Probable cause exists when "at the time of the arrest `the facts and circumstances within [the arresting officer's] knowledge and of which she has reasonably trustworthy information would warrant a prudent person in believing that the suspect had committed or was committing an offense.'" Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 2000), quoting Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999). While generally the question of whether an officer had probable cause is one for the jury to decide, probable cause may be found as a matter of law when "the facts permit but one conclusion — that is `only when no reasonable jury could find that the officer did not have probable cause' to make an arrest.'" Jones by Jones, 45 F.3d at 182, quoting Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993).
Colone argues that the attempted initial stop of his car was without probable cause, and, therefore, his flight from the police officers was proper because he feared for his safety. As an initial note, a limited investigatory traffic stop, including a field interrogation, need not be based on probable cause, but may be supported only by reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968). See, e.g., United States v. Hensley, 469 U.S. 221, 226 (1985) ("In particular, the Court has noted that law enforcement agents may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity."); United States v. Felix-Felix, 275 F.3d 627, 635-36 (7th Cir. 2001). More important, however, is the fact that no seizure occurred when Bunville attempted to make the initial traffic stop because there was no submission to authority or physical touching. Hodari D., 499 U.S. at 626-27. The Fourth Amendment only provides protection from unreasonable searches and seizures, requiring both a showing of authority by the police and a submission to such authority or an actual physical touching. Hodari D., 499 U.S. at 626-27; Bradley, 196 F.3d at 768. While Officer Bunville's attempt to pull Colone's car over certainly was a showing of police authority, a seizure further requires the individual to stop or otherwise submit to such police authority. Because Colone's car sped off when Bunville initially attempted to stop it, no seizure took place.
Moreover, even if the initial attempted traffic stop lacked reasonable suspicion, Colone and his friends' subsequent actions are not simply to be disregarded by the court. Any crimes committed after the initial attempt to stop Colone's car are distinct crimes justifying a subsequent stop. E.g., United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997) ("if a suspect's response to an illegal stop "is itself a new, distinct crime, then the police constitutionally may arrest the [suspect] for that crime."). Thus, even if the initial attempted stop is construed as a seizure without reasonable suspicion, Colone's actions subsequent to that stop could justify Colone's seizure by the police. The undisputed testimony is that after the attempted traffic stop, Colone's car sped away and broke numerous traffic laws, and Colone fled the scene when the car was ultimately stopped. This conduct after the attempted initial stop justified the officers actions in the pursuit and stop of Colone's car. Thus, the court need not decide whether reasonable suspicion would have supported the initial traffic stop of Colone's car.
Whether or not the initial attempted traffic stop by Bunville was supported by reasonable suspicion is a genuine issue of fact. Burge testified that he heard Colone, Martin and Falkner talking about drugs, gangs or a homicide. (Def. L.R. 56.1 ¶¶ 25-27.) Colone denies that he or his friends ever spoke about gangs or a homicide, and claims that the only mention of drugs was when some boys solicited them, which Colone refused. (Pl. Resp. to Def. L.R. 56.1 ¶ 25.) If Burge's testimony is true, reasonable suspicion would have existed for the traffic stop because such suspicion would have an objective manifestation that Colone and his friends had been engaged in criminal activity. See United States v. Cortez, 449 U.S. 411, 417 (1981). If Burge were not believed, there would be no reasonable suspicion based on these facts.
Instead, the relevant inquiry is whether probable cause existed to arrest Colone at the time he was taken into custody. Spiegel, 196 F.3d at 723. By the time Colone's car was stopped, it had broken numerous traffic laws, including speeding, driving in the wrong lane, failing to stop at stop signs, driving recklessly and fleeing from an officer. Moreover, after a traffic stop, police have the authority to detain passengers as well as drivers. Maryland v. Wilson, 519 U.S. 408, 414-15 (1997). At the time Colone was seized, his automobile, which he was not driving, sped away from officers, broke numerous traffic laws, and he ultimately fled the officers' lawful attempt to detain him after the traffic stop, hiding in a basement to avoid the police. The court concludes that no reasonable jury could find that the Dolton Police Officers were without probable cause to arrest Colone. See Tom, 962 F.2d at 960 (concluding that officer had probable cause where, when already could lawfully detain the suspect, the suspect fled). No genuine issue of material fact exists that the Dolton Police Officers had reasonably trustworthy information that would warrant a prudent person to believe that Colone had committed or was committing an offense. As such, summary judgment is granted in favor of the Dolton Police Officers on the false arrest claim.
C. Counts II and III: Failure to Protect or Intervene
Colone also brings claims in Counts I and II against the Dolton Police Officers alleging that they failed to protect him from excessive force and false arrest. An officer may be liable for failing to intervene or prevent another law enforcement officer from infringing the constitutional rights of a citizen if the officer knows "(1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement officer, and the officer had a realistic opportunity to intervene to prevent the harm from occurring." Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (emphasis in original).
The court has already concluded that the firing of shots at Colone's car was not excessive force because it did not result in a seizure. Thus, because no excessive force took place, the Dolton Police Officers are not liable under a failure to protect theory. Furthermore, the court has already concluded that Colone has insufficient evidence that the Dolton Police Officers were involved with use of the canine unit, so once again questions concerning their awareness of a constitutional violation or their duty to intervene do not arise. Finally, because the court has concluded that no false arrest took place, the officers were not obligated to protect Colone from a "false" arrest. As such, judgment is granted in favor of the named officers on the failure to protect claims.
D. Count III: City of Dolton's Liability for a Custom or Policy
Colone does not dispute that no issue of fact exists to support the liability of the City of Dolton under § 1983. Therefore, summary judgment is granted in the City of Dolton's favor.
E. State Law Claims
The only remaining claims are state law claims. The court, however, declines to exercise supplemental jurisdiction over these claims. See 28 U.S.C. § 1367 (c)(3) ("The district court may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court dismissed all claims over which it has original jurisdiction."); Groce v. Eli Lilly Co., 193 F.3d 496, 501 (7th Cir. 1999) ("[I]t is the well-established law of this circuit that the usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial."). As such, the court will dismiss the state law claims without prejudice for lack of jurisdiction
CONCLUSION
The motion for summary judgment of the City of Dolton and the Dolton Police Officers is granted with respect to Counts I, II, and III [#40]. Pursuant to 28 U.S.C. § 1367 (c)(3) the court declines to exercise supplemental jurisdiction over the state law claims in Count V, thus, those claims are dismissed without prejudice for lack of jurisdiction. The City of Harvey's motion for summary judgment on Count V is denied as moot [#39]. This case is terminated in its entirety.