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Bauer v. City of Chicago

OPINION FILED SEPTEMBER 24, 1985.

WILLIAM D. BAUER ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Charles E. Freeman, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 29, 1985.

Plaintiffs filed a two-count complaint against Raymond Hayes and the city of Chicago (city). The action arose out of an occurrence in which Hayes, while suspended from the Chicago police department, was involved in a shooting with plaintiff Bauer and plaintiff's decedent. The city declined to represent Hayes and filed a motion for summary judgment, which was granted on September 20, 1984. Plaintiffs appeal the entry of summary judgment against them as to the city. Defendant Hayes had been defaulted in early 1984 and, on October 11, 1984, judgment was entered against him in the sum of $1.2 million. Hayes is not a party to this appeal.

The shooting that precipitated this action occurred in the early hours of October 20, 1980. Raymond Hayes' account of the incident indicates that at approximately 2:30 a.m., he and his wife, a black couple, were leaving a movie and driving home through the town of Cicero. At 16th Street and Laramie, Hayes stated that a car occupied by two white men, a white Lincoln Continental, drove up alongside Hayes' car and tried to force him off of the road. The two men yelled to Hayes to "get out of Cicero or we'll kill you." Hayes stated that he tried to ignore these and other threatening remarks. At 28th and Laramie, the two men again tried to curb Hayes' car. Hayes managed to avoid the white car and drove to 31st and Laramie, where he stopped for a red light. When the two men drove alongside Hayes, he informed them that he was an off-duty Chicago police officer on his way home. Hayes sat through three traffic light changes hoping the two men would drive away. Hayes then stated that the passenger of the white car (Bauer) leaned forward as if to pick something up and yelled that if Hayes did not move his car, he would "blow [his] brains out." Hayes put his car into reverse and tried to escape, but the driver of the white car (Patz) backed his car into Hayes', at which time the bumpers of the cars became locked.

A few seconds after the cars became locked together, Hayes stated that the two men got out of their car with their hands inside their pockets. Hayes stated that he pushed his wife to the floor, got out of his car, and fired 12 rounds from his service revolver in self defense. The two men tried to get back into their auto to escape, but the locked bumpers prevented that attempt. Hayes moved closer to their car and saw that the two men had been shot. He then attempted to flag down passing cars to get police to the scene.

The surviving plaintiff, William Bauer, stated that he was out with his uncle Herbert Patz the evening of the shooting. The two men had visited several bars and had numerous drinks. At about 2:45 a.m., the two were on their way to get something to eat. As they drove south on Laramie in Cicero, their car was cut off by a person driving a red car (Hayes' car). Bauer's uncle then proceeded to cut off the red car. Each car cut off the other a few times as the cars proceeded down the road. When the two cars came to a stop light at 31st and Laramie, the two men drove up alongside of the red car. Patz saw that the driver of the red car had a gun near his steering wheel. Just as Bauer noticed that the man had a gun, Bauer stated that the man jumped from the red car and began shooting. Bauer did not know the race of the man in the red car until Hayes got out of his car and began shooting. There was a phone in Patz' car, but Bauer stated that he did not reach down to use it. Bauer stated that neither he nor his uncle had a weapon, although a can of mace was ultimately found on the floor of the car. Bauer also stated that neither he nor his uncle ever left the car before the shots were fired.

Several witnesses to the incident indicated that they heard the men in the white car use racial remarks directed at the people in the red car. Some witnesses also heard Hayes identify himself as a police officer. Photos of the cars involved in the incident indicated that the white car's rear fender was touching the red car's front fender. Several witnesses also stated that Bauer and Patz never got out of their car before Hayes began shooting.

The plaintiffs filed a second amended complaint on September 21, 1981, against Raymond Hayes and the city. Count I, sounding in negligence, alleged that the shooting occurred while Hayes was employed by the city and while acting within the scope of his employment and authority as a police officer on October 20, 1980. Plaintiffs admitted that Hayes had been suspended from the department from October 16, 1980, until midnight October 20, 1980. The complaint alleged the negligence of Hayes acting individually and as an agent and servant of the city based upon his unreasonable use of force while making an arrest. The complaint also alleged the negligence of the city in failing to collect Hayes' revolver, shield, badge and identification card, contrary to police regulations.

Count II alleged a violation of plaintiffs' civil rights (42 U.S.C. § 1983 (1982)) based upon the excessive use of force in making an arrest. Plaintiff alleged that it is the policy and custom of the Chicago police department to encourage and condone excessive force.

The city, declining to represent Raymond Hayes, filed a motion for summary judgment on January 27, 1984. Plaintiffs filed a response and, on September 20, 1984, the trial court granted judgment in favor of the city and against plaintiffs. The sole question on review is whether the entry of summary judgment against plaintiffs was proper.

Summary judgment is proper if the pleadings, exhibits, affidavits and depositions on file disclose no genuine issue of material fact such that the movant is entitled to judgment as a matter of law. (Kroll v. Sugar Supply Corp. (1983), 116 Ill. App.3d 969, 975, 452 N.E.2d 649.) Upon review of the trial court's entry of summary judgment, the appellate court determines, initially, whether the trial court was correct in ruling that no genuine issue of material fact was raised and, secondly, whether entry of judgment was correct as a matter of law. (Fuller v. Justice (1983), 117 Ill. App.3d 933, 938, 453 N.E.2d 1153.) Summary judgment should be granted "only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right thereto." Motz v. Central National Bank (1983), 119 Ill. App.3d 601, 605, 456 N.E.2d 958.

In moving for summary judgment, the city contended that it was not liable for the actions of Raymond Hayes because at the time of the incident Hayes was officially suspended from the police department and could not, therefore, have been acting within the scope of his employment as a Chicago police officer. Plaintiffs contended below and on appeal that questions of fact exist as to whether Hayes was acting within the scope of his employment, that the findings of the Chicago police office of professional standards (OPS) created questions of fact as to whether Hayes was acting within the scope of his employment, and that questions of fact exist as to whether the city's failure to timely obtain the suspended officer's indicia of authority (i.e., shield, badge and identification card) was the proximate cause of plaintiffs' injuries.

The overriding fact in this case is that at the time of the incident in question, Raymond Hayes was suspended from the department for disciplinary reasons. A police officer receives no salary while suspended, and if the suspension covers an entire pay period, the city will not make the premium payment on the member's hospitalization insurance for that pay period. While an officer is suspended from the force, he is "bound by the Rules and Regulations of the Chicago Police Department * * * except those rules and regulations which require the exercise of direct police action by a member." Police General Order 75-22, sec. XIV.

Plaintiffs cite a number of cases in support of their position that Hayes was acting within the scope of his employment during the shooting incident. In all of these cases, however, Andrews v. City of Chicago (1967), 37 Ill.2d 309, 226 N.E.2d 597, Karas v. Snell (1957), 11 Ill.2d 233, 142 N.E.2d 46, and Banks v. City of Chicago (1973), 11 Ill. App.3d 543, 297 N.E.2d 343, the officers involved were merely "off-duty," not suspended. Research on this issue does not disclose any case involving a suspended police officer, and neither party cited such a case in their briefs. The cases cited by plaintiffs are not determinative, because it is beyond dispute that the city can be held liable for the actions of an off-duty police officer. However, an officer on suspension from the department is, beyond question, in a qualitatively different position from one merely off-duty. The term suspension was defined by our legislature in the Merit Employment System Act as "the temporary separation of an employee from his/her position for disciplinary reasons." (Ill. Rev. Stat. 1981, ch. 34, par. 860-2(t).) In Ridenhour v. Mollman Publishing Co. (1978), 66 Ill. App.3d 1049, 1051, 383 N.E.2d 803, this court, in a contract case, cited Webster's Dictionary and defined suspension as the "temporary forced withdrawal from the exercise of office." The term "suspension" has also been used, without definition, in the State Police Act (Ill. Rev. Stat. 1981, ch. 121, par. 307.13) and in the County Police Department Act (Ill. Rev. Stat. 1981, ch. 125, par. 164). The very nature of an employment ...


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