The opinion of the court was delivered by: Norgle, District, Judge.
The Court's last encounter with this case was on Defendants',
Harold Jenkins ("JENKINS"), Andrew Rodez ("RODEZ") and the
Village of Maywood ("VILLAGE"), Rule 12(b)(6) motion to
dismiss. That motion was granted in part and denied in part;
the fourth and fourteenth amendment claims remain. All
Defendants now move for summary judgment.
Federal Rule 56(c) provides for the entry of summary judgment
if the record on the motion reveals "no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." An opponent of a properly
supported Rule 56 motion must set forth specific facts showing
that there is a genuine issue for trial. Fed.R.Civ.P. 56(e).
See also Local Rule 12(f). The opponent of the motion
receives the benefit of all reasonable doubts and inferences
arising from the underlying facts. See generally, Wright,
Miller & Kane; Federal Practice and Procedure: Civil 2d, §
2727. Only reasonable inferences favoring the opponent of the
motion, however, will be considered by the Court. Hermes v.
Hein, 742 F.2d 350, 353 (CA 7 1984). In other words, the Court
need not displace logic or disregard inferences which
unavoidably follow from the established facts. With this
understanding, the Court now turns to the facts established in
the present case.
In an ideal world the perpetrators of crime would have the good
sense to throw in the towel when the game is up and the odds
are against them. But this is not an ideal world and this case
bears out that observation. On August 11, 1982 the Plaintiff,
Jesse Hill ("HILL"), robbed the T.P. Food Store in Maywood,
Illinois. Vright Hardy and two other men aided Hill in the
criminal venture. Before, during and after the robbery Hill was
armed with two (maybe three) pistols. One pistol was fired
during the robbery. The shot hit no one, but it could have. The
proceeds from the robbery were small (some cash, some coin). As
Hill left the store his wardrobe included two guns; one secured
in a shoulder holster under his arm and another held in his
Defendant Jenkins is a Maywood Policeman. He was off duty at
the time of the T.P. Foods robbery. Jenkins and his young son
were enjoying a drive in Jenkins' red Trans-Am when a dispatch
came over the police radio installed in the car. The dispatch
informed listeners that a burglar alarm had been activated at
T.P. Foods, 1019 West Madison Street, Maywood, Illinois. Deft's
Ex D at 1. Jenkins heard the dispatch and proceeded to T.P.
When he arrived at the scene, Jenkins heard a shot. He saw an
on-duty Maywood police car proceeding to the store and Vright
Hardy "nervously" walking out. Jenkins observed Hardy carried a
brown paper bag. He then saw Hill run from the store's
entrance. Jenkins states Hill was carrying two guns, but Hill
contends Jenkins could not have seen the guns because they were
concealed. Hill does not mention the gun he tucked in the front
of his trousers after coming out of the store.
At the time Hill recalls being shot he states he was carrying
only one gun. Id. at 131. That gun was in a shoulder holster
under his jacket. Id. Hill says he then fell to the ground
and groped for the gun in his shoulder holster. Id. at 132.
Jenkins walked up to the prone Hill, held a gun on him and told
him to freeze. Id. at 134. Jenkins then removed the gun from
Hill's shoulder holster, (id. at 135.) and retrieved another
gun and a green bag from the grass near Hill. Id. at 137.
From his position on the grass Hill saw Jenkins walk across to
the spot where Hardy had been hit and retrieve another gun and
another bag. Id. Hill maintains the two guns retrieved by
Jenkins (the one found on the lawn and the one found on the
street) belonged to Hardy. Id. at 138. But Hill does admit
picking up a second pistol as he left the food store and
tucking it in the waistband of his trousers outside the
store. Id. at 109-11. Hill specifically remembers tucking the
gun directly in the center of his waistband after he exited
the store. Id. at 11. Hill claims he later handed off the same
pistol to Hardy and therefore could not have had it in his
possession when he was shot by Jenkins. Id. at 115-16.
Off-duty Officer Jenkins relates a slightly different version
of the shooting. See Jenkins' Affidavit, Deft's Ex D. Jenkins
says he saw Hardy come out of the store first. Then Hill
appeared. According to Jenkins, Hill carried two guns as he
came out of the store: one gun (a nickel plated revolver) was
in Hill's right hand; the location of the other gun is not
mentioned. Id. at 2. This "two gun" version is not altogether
inconsistent with Hill's version of the facts. For example, it
is unlikely Jenkins saw the gun Hill insists was in the
shoulder; holster, but it is not contested that Jenkins saw the
nickel plated gun Hill admits he carried out of the store in
his right hand and later tucked in his trousers.
In any case, as Hill came out of the store Jenkins heard
someone yell, "there they go!" Jenkins then gave chase to the
fleeing Hill and Hardy. Id. at 2. While driving, Jenkins
heard from his police radio that "T.P. Foods has been robbed."
Id. Jenkins does not elaborate on the radio message.
After some chasing, Jenkins relates that Hill turned and
"pointed a nickel plated revolver at me." Id. at 3. Jenkins
then fired at Hill. Hill began to run, dropped a green bag and
the nickel plated gun and then fell some 20 to 30 feet from
where he had been shot. Id. These final events took place in
or near the front yard located at 1201 So. 12th Avenue. Id.
Cheryl Hudson resides at 1224 So. 12th Avenue. Hudson
Affidavit, Deft's Ex E at 1. That address is across the street
from 1201 So. 12th Avenue; the location where Hill was shot
by Jenkins. At the time of the shooting, Hudson was sitting by
a window which overlooked 12th Avenue. She was talking on the
telephone. Id. Through the window Hudson saw a man running
north on 12th Avenue; he carried a bag in one hand and "an
object in his other hand." Id. As she watched the man run,
Hudson heard someone yell "stop" or "halt." Id. Hudson turned
away from the window and again heard someone yell "stop" or
"halt." Shortly thereafter she heard four or five gunshots. She
returned to the window to see the man she had previously seen
running now lying in the front yard at 1201 So. 12th Avenue.
She observed a gun "lying next to [the man's] hand." Id. at