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September 18, 1985


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 hand.

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. Foods.

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.

After Hill and Hardy saw the Maywood squad car they decided to escape. They began running and were pursued, on foot, by a uniformed Maywood policeman. Jenkins followed the three in his red car. After some dodging in and out of front yards, Hardy crossed in front of Jenkins and was struck by the red car. Hardy fell and became pinned under the car's front bumper. Hill Dep at 123-24. Hardy was able to get up. He ran to Hill, who was now looking toward Hardy and the red car. The two began to run together when Hardy reached where Hill was standing. At this point Hill states he heard three shots and felt a burning sensation in his right leg. Hill Dep at 127. According to Hill one minute (or a bit more) had elapsed from the time he came out of the T.P. Food Store and was seen by Jenkins. Hill Dep at 126.

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 2.

Defendants insist a recent Supreme Court decision governs this case. See Tennessee v. Garner, ___ U.S. ___, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Garner involved the fatal shooting of a fifteen year old burglary suspect by an officer responding to a night-time report of a burglary. The issue before the Court involved the "constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon." 105 S.Ct. at 1697. Specifically at issue was the constitutionality of a statute which allowed the use of all necessary means to effect an arrest (including deadly force) "if, after notice of the intention to arrest the defendant, he either flees or forcibly resists." See 105 S.Ct. at 1698. The Court found the statute unconstitutional insofar as it authorized the use of deadly force to apprehend an "unarmed, nondangerous" fleeing suspect. Id. at 1701. Thus, the Court held deadly force may not ...

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