The opinion of the court was delivered by: Shadur, District Judge.
Addison, Gorr, Villa Park and Esposito have moved for
summary judgment as to all claims against them. For the
reasons contained in this memorandum opinion and order
defendants' motions are denied.
Larson alleges that on December 28, 1980 he was driving his
automobile in Addison when he was "confronted by an Addison
police officer." Larson refused to stop at the officer's
directive, and an automobile chase ensued through Addison,
Villa Park and Elmhurst (at speeds reaching 130 m.p.h.).
Police officers from all three municipalities joined in the
chase. Larson allegedly decided to surrender "shortly
thereafter" and voluntarily stopped his automobile at 405-07
Hamilton Street in Villa Park. When he got out of the
automobile Larson was shot by Wind, allegedly without
In response to the current motions Larson has shifted ground
considerably in asserting liability of the various defendants.
Though the Complaint has not been amended to catch up to
Larson's changed theories, this opinion will deal with his
present positions, which may be summarized as follows:
As to each of the municipal defendants Larson must prove for
Section 1983 liability that the claimed constitutional
violations by police officers were the product of governmental
"policy" or "custom." Monell v. Department of Social Services,
, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).
Monell, id. at 690 n. 55, 98 S.Ct. at 2035 n. 55, also negates
liability as to Gorr. Because this opinion finds Larson's
Section 1983 claims still viable, it will not treat with the
proof requirements for his pendent state law claims.
For Addison to have "caused" Larson's injury under
Monell, Larson must produce evidence of an Addison "custom" or
"policy" that led in some way to his injury. Mere governmental
negligence is not enough to demonstrate a "custom" or "policy,"
Spriggs v. City of Chicago, 523 F. Supp. 138, 143 (N.D.Ill.
What are needed instead are averments that
municipal inaction has been reckless, defined
here to mean inaction which has created a
substantial probability that undesirable
subordinate behavior will manifest itself in
increased and significant amounts.
Accord, such cases as Leite v. City of Providence, 463 F. Supp. 585,
590 (D.R.I. 1978).
Larson points to deposition testimony of Gorr and Addison
Police Lieutenant Robert Tyndall, which Larson characterizes
as suggesting that the training received by Addison police
officers in connection with firearm use and the use of deadly
force "was and is dangerously close to no training at all."
Gorr testified Addison has no requirement that its officers
receive training in the use of deadly force, has no definition
of a well-trained officer, and has no written training goals.
Tyndall's testimony was comparable.
Addison and Gorr respond in part by citing (1) Addison's
adoption (through its Police Department Rules and Regulations)
of the Illinois statutory limitations on the use of force in
making arrests and (2) Wind's accurate summary of the
statutory standard during his deposition. But the essence of
a lack-of-training claim is not that the rules do not exist,
or even that they are not known. Rather the claim is that they
have not been inculcated so that they will be adhered to in
the situations of extreme stress when they become relevant. On
that score the evidence must be viewed in the light most
favorable to Larson as the party resisting summary judgment.
Addison's proof that Wind attended a 1976 basic training
course (including firearm-related training) at the University
of Illinois, and that Addison holds monthly shooting
exercises, simply poses factual issues.
Addison could be found liable by a jury if the jury viewed
Addison's omissions as so severe as to reach the level of
"gross negligence" or "deliberate indifference" to deprivation
of Larson's constitutional rights (Owens v. Haas,
601 F.2d 1242, 1246 (2d Cir. 1979)) or recklessness under the Spriggs
definition. Fact issues therefore prevent summary judgment on
Gorr has moved for summary judgment on the already-discussed
Addison grounds and one other: Because he first became
temporary head of the Addison police in October 1980 he cannot
be held liable for a departmental custom or policy (assuming
one existed) that eventuated in Larson's shooting less than
three months later. That appealing argument must be fleshed
out, for it too is essentially factual and poses a number of
Summary judgment is a singularly inappropriate vehicle to
deal with such issues. Attenuated theories of liability can
almost always survive summary judgment motions, even though
the likelihood of success at trial may be remote. Gorr's
motion too must be denied.
Esposito poses very different problems, for he was directly
involved in the arrest. This opinion has already identified
the "unlawful climate" and delayed-hospital-transfer theories
on which Larson relies.
On the first of these there is clearly enough evidence to
pose a factual issue. One passage from the deposition of
Steven Pecoraro, who was Larson's passenger that night, will
suffice. Pecoraro testified that after Larson's car came to a
stop several officers ran to the car, brandishing their
weapons through the car windows and screaming at Larson and
Pecoraro. After Pecoraro was removed from the car, he says he
was clubbed over the head by Esposito and handcuffed. Esposito
then purportedly said:
Okay, tough guy . . . If you make a move, I'll
kill you . . . And with this, he takes a .357,
clicks the trigger back, puts it up against my
forehead like real hard without moving my head
back too much, and the Addison police officer
walked around the back of me and he says, "Punk,
make one move when we change handcuffs and your
dead. I'll kill you right now."
Such police behavior, if credited by a jury, could lead it
to impose Section 1983 liability for the harm inflicted upon
Larson by another officer. Esposito mistakenly argues, based
on authority like Richardson v. City of Indianapolis,
658 F.2d 494, 500 (7th Cir. 1981) and Byrd v. Brishke, 466 F.2d 6, 11
(7th Cir. 1972), that Larson cannot read into this case a duty
to prevent Wind's behavior. That misses the point. Larson
argues Esposito and the other unidentified officers also caused
the shooting by their participation in a festival of
Under Larson's theory this is not a shooter-nonshooter case
like Hampton v. Hanrahan, 600 F.2d 600, 626 (7th Cir. 1979). By
their claimed conduct Esposito and the unidentified officers
are assertedly implicated in the shooting fully as much as
Wind, who pulled the trigger.
That contention does not, as Esposito contends, "extend
civil rights liability light years beyond its present bounds."
It rather calls on a factfinder to conclude that a claimed
assault by a group of armed police is not an individual
undertaking — each officer's conduct may draw sustenance from
the acts of the others. Neither the enterprise nor the
liability is necessarily compartmentalized. Again taking the
evidence most favorably to Larson, the Court denies summary
judgment on that ground.
On the "failure to transport" claim, too, there is a
material factual dispute. White v. Rochford, 592 F.2d 381,
383-84 (7th Cir. 1979) upheld a Section 1983 cause of action
where police officers refused to lend aid to children
endangered by performance of the officers' official duties. It
added a relevant dictum, id. at 383:
. . the Due Process Clause is implicated where
a policeman . . . withholds needed medical
assistance from someone in his custody.
On the version of the facts most favorable to Larson,
Esposito had Larson in his custody following the shooting.
White indicates Esposito's failure to assure prompt medical
assistance creates potential Section 1983 liability.
Larson has adduced some evidence to show that the Villa Park
ambulance remained at the shooting scene between one-half hour
and one hour, that the nearest trauma center was only five
minutes away, and that the ambulance left the scene without
lights or siren. Esposito may persuade the trier of fact, as
he claims, that the paramedics made those decisions and he
could not have controlled them. That however is an issue to be
resolved at trial rather than by summary judgment.
Larson's scant evidence as to Villa Park's deficient
policies is able — by a hair — to withstand Villa Park's
motion. If a jury credited only that evidence, it could find
that in the circumstances the absence of any such policies or
guidelines caused Esposito's behavior. That being so, the
earlier discussion as to Addison's potential liability applies
to keep Villa Park in the case.*fn6
All four summary judgment motions are denied.*fn7 This
Court will address the survivability issue (see n. 1) as soon
as it is fully briefed.