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LARSON v. WIND

February 22, 1982

JAY LARSON, PLAINTIFF,
v.
THOMAS WIND, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Jay Larson ("Larson")*fn1 originally sued the Villages of Addison ("Addison") and Villa Park ("Villa Park"), the City of Elmhurst ("Elmhurst"), Addison police officer Thomas Wind ("Wind"), an unidentified Villa Park police officer (since identified as Genaro Esposito, "Esposito," though not yet named as a party defendant) and other unidentified police officers, alleging that all defendants violated Larson's civil rights in connection with the claimed December 28, 1980 shooting of Larson by Wind. Complaint Count I seeks relief under 42 U.S.C. § 1983 ("Section 1983"). Counts II through IV assert various tort theories.*fn2 Counts V and VI, added by amendment November 17, 1981, and joining Addison Police Chief Alexander Gorr ("Gorr") and Villa Park Police Chief William Kohnke ("Kohnke"), do not specify their theories of action but appear to be asserted under Section 1983.

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.

Background Facts*fn3

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 justification.

Larson's Changed Theories of Liability

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:

    Addison, which employed Wind at the time of the
  shooting, caused Larson's injury through (1) its
  lack of training and supervision of its police
  officers, including the absence of any policies,
  procedures or guidelines covering the use of
  firearms, (2) its reckless hiring and screening
  procedures for police officers and (3) a post hoc
  condonation or ratification of Wind's actions.
    Gorr, who was Addison's temporary police chief at
  the time of the shooting, is liable on essentially
  the same grounds as Addison: by failing to
  implement procedures or guidelines that might have
  prevented the shooting.
    Esposito, who participated in the arrest (though
  he physically subdued Larson's passenger rather
  than Larson himself), was a primary antagonist at
  the scene of the shooting. By his own actions he
  helped create an atmosphere of lawlessness and
  violence, of which the shooting was a direct and
  natural consequence. Esposito also failed to insure
  that Larson was transferred to a hospital promptly
  after the shooting.
    Villa Park was delinquent as to Esposito, just as
  Addison was as to Wind. Villa Park too failed to
  implement specific policies or guidelines on
  firearm use and the use of deadly force,
  establishing a causal link between Villa Park and
  Esposito's behavior.

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, 436 U.S. 658, 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 respondeat superior 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.

Defendants' ...


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