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CHOLEWIN v. CITY OF EVANSTON

July 17, 1989

LAWRENCE CHOLEWIN, Plaintiff,
v.
CITY OF EVANSTON, ILLINOIS, Defendant



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 On April 17, 1989, plaintiff filed the instant action claiming that defendant denied him the property right embodied in Chapter 70, Section 91 of Illinois Revised Statutes without affording him due process of law as required by the Fourteenth Amendment to the United States Constitution. The parties agreed to a bench trial, which was held on May 4 and 5. Having heard and considered all of the evidence presented at trial, the court hereby makes the following findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

 FINDINGS OF FACT

 1. Plaintiff Lawrence Cholewin has been employed as a police officer by the defendant City of Evanston ("Evanston"), a municipality, since 1977. (Tr. 32.)

 2. At about 10:00 a.m. on Sunday, September 4, 1988, while Cholewin was on duty as an Evanston police officer, he responded to a police call complaining of a possible burglary at the premises of 2100 Greenleaf in Evanston. (Tr. 32, 33.) The complaining call was placed by the owner, Jay Collier, who runs a furniture delivery service and self-storage company at the premises. (Tr. 13-14.)

 3. When Officer Cholewin arrived at the scene, two other Evanston policemen, Officer Chuck Perry and Officer Siripong Sricharmorn, a/k/a Officer Lek (Tr. 202.), were already there. (Tr. 16, 32, 150, 197.)

 4. Officer Cholewin learned that Collier and Officer Sricharmorn had observed a man running from one of the boats parked in Collier's fenced-in yard. (Tr. 13-14, 16, 34, 196.) The man ran into a large patch of weeds located on the southwest portion of Collier's property. (Tr. 16, 34, 196.) The weeds were thick and were approximately six feet high, making it difficult to see the intruder. (Tr. 16, 155, 196-197.) Officers Perry and Sricharmorn had attempted to follow the intruder but, after venturing a short distance into the weeds, Officer Sricharmorn was bothered by allergies and Officer Perry determined that the weeds were too dense to get through. (Tr. 155, 197.)

 5. When Officer Cholewin arrived, the three policemen and Collier guarded the weeded area and discussed their next step in attempting to apprehend the intruder. (Tr. 16, 34, 156.) Collier, whose van was parked five to ten yards away from where the group was standing, offered to drive his van into the weeded area. (Tr. 16-17, 35, 156.)

 6. Collier and Officer Cholewin then walked over to Collier's van, while Officers Perry and Sricharmorn remained by the weeds. (Tr. 18, 24, 35, 158.) The van was attached to a trailer which was carrying Collier's twenty-four foot boat. (Tr. 15, 35.) Collier explained that he wanted to unhitch the trailer before driving the van through the weeds. (Tr. 17, 35.)

 7. Collier then backed up the van and the boat, trying to find a level spot to unhitch the trailer. (Tr. 18-19, 35-36.) Officer Cholewin was behind the boat, directing Collier. (Tr. 18, 36.) After finding a level spot, Collier exited the van to unhitch the trailer. (Tr. 19, 36.) This required pulling up on the front A-frame of the trailer, allowing the spring-loaded front wheel of the trailer to kick down, and then cranking up the leg supporting the front wheel until the front of the trailer was raised above the hitch on the van. (Tr. 19, 21.)

 9. After the trailer was unhitched, Sergeant Charles Heuer of the Evanston Police Department arrived on the scene. (Tr. 111, 113, 163.) He was the patrol supervisor on duty that morning. (Tr. 110-111.) Sergeant Heuer walked through a path in the weeds and determined that the intruder had escaped through a hole in the fence. (Tr. 131, 164.)

 10. The next day, Monday, September 5, 1988, Officer Cholewin was off from work due to the Labor Day holiday. Officer Cholewin also did not work the following Tuesday, the 6th, which was his regular day off. (Tr. 39.) On either the evening of the 5th or the morning of the 6th, Officer Cholewin told Sergeant Everett Erlandson, the supervisor on his regular shift, that he had sustained a neck injury while helping to unhitch Collier's trailer in the course of his duty on September 4. (Tr. 39.) On September 6, Officer ...


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