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HENSON v. THEZAN

July 26, 1989

KENNETH RAY HENSON, Plaintiff,
v.
LAWRENCE THEZAN, ANTHONY VILLARDITA, JOHN FITZSIMMONS, JOHN GOVER, and UNKNOWN OFFICERS OF THE CHICAGO POLICE DEPARTMENT, Defendants



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Plaintiff Kenneth Ray Henson has sued Chicago Police Officers Lawrence Thezan, Anthony Villardita, and John Fitzsimmons under 42 U.S.C. ยง 1983 for allegedly beating him over a period of time following his arrest for a home invasion, rape, attempted murder, and child molestation. On November 2, 1988, this court denied the defendants' motion for summary judgment, 698 F. Supp. 150, but the defendants have moved for reconsideration of that ruling in light of the Seventh Circuit's recent opinion in Wilkins v. May, 872 F.2d 190 (7th Cir. 1989). For the reasons set forth below, their motion will be denied.

 FACTUAL BACKGROUND

 As in the original ruling, this court accepts as true the plaintiff's version of the events. Around midnight on December 18, 1984, Officers Thezan and Fitzsimmons appeared at the home of the plaintiff's uncle and there placed the plaintiff under arrest on suspicion of a home invasion, rape, child molestation and attempted murder that had occurred the previous evening. After handcuffing the plaintiff, Officer Thezan pushed the plaintiff down a flight of stairs, causing him to land on his face.

 Once in the squad car, Officer Thezan began beating the plaintiff in the face, demanding that he talk about the events of the prior evening, but when Officer Fitzsimmons warned Officer Thezan against leaving marks, the latter shifted his attack to the plaintiff's body. At some point during the journey, Officer Thezan threatened to shoot the plaintiff's "black ass dead" if he did not speak. Still the plaintiff refused to talk.

 Back at the station, the officers placed the plaintiff in an interrogation room where, over the course of the next few hours, all three defendants took turns intimidating and beating the plaintiff in an effort to make him confess. Ultimately, the plaintiff signed an inculpatory statement regarding his participation in the crimes of the previous evening. As a result of the beatings, the plaintiff lost the toenails on his feet, suffered injuries to his groin and back, and experienced severe emotional distress.

 PROCEDURAL BACKGROUND

 Because ours is a society in which no man is above the law, and no man beneath it, the fact that the plaintiff was convicted and sentenced for a heinous crime neither exonerates the officers for what they allegedly did to him, nor prevents the plaintiff from bringing his claims to court. On April 13, 1987, he did just that, alleging that the defendants had violated his rights under the Fourteenth Amendment Due Process Clause and the Eighth Amendment Cruel and Unusual Punishment Clause.

 On July 13, 1988, the defendants moved for summary judgment. They first argued that Lester v. City of Chicago, 830 F.2d 706 (7th Cir. 1987), established that the plaintiffs' allegations all amounted to claims of excessive force in arrest, and that such claims fell within the Fourth Amendment Reasonableness Clause. On the basis of testimony that the defendants had not beaten the plaintiff, as well as pictures and medical records showing that the plaintiff had suffered no lasting physical injuries, the defendants then urged that Lester entitled them to summary judgment because no reasonable jury could find that the defendants had acted unreasonably in arresting the plaintiff, or that the plaintiff had sustained meaningful damages during the arrest.

 This court denied the motion. Agreeing that Lester provided the analytical framework for the plaintiff's claims, 698 F. Supp. at 151-52, the court first held that the plaintiff's testimony about the events surrounding his arrest easily created a jury question as to whether the defendants had used unreasonably excessive force against him. Id. at 152. The court then held that although a plaintiff must prove more than trivial injury to prevail on a Fourth Amendment claim, such injury need be neither physical nor permanent. Id. at 153.

 DISCUSSION

 On April 17, 1989, the Seventh Circuit issued Wilkins v. May, 872 F.2d 190 (7th Cir. 1989). In that case, the plaintiff alleged that, during an interrogation following his arrest, the defendants had pointed a gun at his head in an effort to extract a confession from him, and that this had caused him severe mental distress. The district court dismissed this claim. Employing the substantive due process analysis established by Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973) (Friendly, J.), for claims brought by pretrial detainees, the district court held that the plaintiff had failed to state a claim because "the conduct complained of by the plaintiff did not cause him severe injury, and was not so brutal or inhumane as to be shocking to the conscience." Wilkins, 872 F.2d at 192.

 On appeal, the plaintiff urged that the Fourth Amendment reasonableness standard, rather than Fifth (or Fourteenth) Amendment due process analysis, governed his claim. Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985), and Lester v. City of Chicago, 830 F.2d 706 (7th Cir. 1987), had established that the Fourth Amendment governs police conduct in seizing a person. Johnson v. Glick, supra, had declared that the more lenient due process clause governs police conduct once a person becomes a pretrial detainee. See also Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). In determining the ...


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