October 27, 1989
EMILY KING, STEVEN KING, and CORA KING, individually and as next friend of her minor child Nicholas, Plaintiffs,
Chicago Police Officers, JOSEPH C. AVILA, Star Number 17323, E. JOHNSON, Star Number 17473, T.R. ZAPOLSKY, Star Number 5735, M. TRISTANO, Star Number 17374, W. BRANTLEY, Star Number 10813, S. DAVIS, Star Number 13008, R. LOMBARD, Star Number 17452, M. OVERSTREET, Star Number 17077, C. SMITH, Star Number 4718, and Police Sergeant CUNNINGHAM, Star Number 1287, Defendants
Charles R. Norgle, United States District Judge.
The opinion of the court was delivered by: NORGLE
CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE
Before the court is the motion of the defendants, Avila, Zapolsky, Tristano, Davis, Lombard, Overstreet, Smith and Cunningham for partial summary judgment as to counts III and IV of the complaint. For the following reasons, the motion is granted.
The parties have complied with local rule 12(e) and (f). The plaintiffs have raised numerous objections to the defendant's statement of undisputed facts. A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). After close examination, the court concludes that the plaintiffs have not raised an issue of material fact.
Plaintiffs first contend that Officer Avila's affidavit, submitted in compliance with local rule 12(e), is not based upon personal knowledge and is therefore incompetent. However, Officer Avila is basing his affidavit upon his personal knowledge of statements made by his partner. Therefore, Officer Avila's affidavit is sufficient to support the defendants's undisputed material facts.
Plaintiffs next contend that certain assertions of fact are patently false. In support of this, plaintiffs rely on the deposition of Cora King and the affidavit of Steven King. However, Officer Avila asserts these facts as the basis for his procurement of the warrant. Plaintiffs' assertion of falsity does not dispute the fact that Officer Avila relied upon this information in obtaining the warrant. Whether his reliance was reasonable is the crux of this action, and will be discussed below.
Therefore, the court adopts the defendants facts as follows:
1. On November 26, 1987, Officer Joseph Avila and his partner, Officer Edward Johnson received information from a confidential informant that cocaine was being sold at 6635 South Paulina.
2. Officer Avila had known this confidential informant for a year and had used him on five occasions to purchase cocaine. On each occasion, the subsequent arrests of the sellers of cocaine led to the convictions.
3. At approximately noon on November 26, 1987, Officers Avila and Johnson drove with their confidential informant to the area of 6635 South Paulina.
4. While Officer Avila waited approximately two blocks away from the premises, Officer Johnson and the confidential informant approached the door of 6635 South Paulina.
5. Officer Johnson told Officer Avila that when he and the confidential informant knocked on the door, a man known as "Big Man" ...
Buy This Entire Record For