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BENNETT v. VILLAGE OF OAK PARK

October 25, 1990

DONALD BENNETT, Plaintiff,
v.
VILLAGE OF OAK PARK, a municipal corporation, KEITH BERGSTROM, RAYMOND HEISE, BRIAN SLOWIAK & DAVID CHAPMAN, Defendants


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 Plaintiff Donald Bennett brought this action under 42 U.S.C. ยง 1983 against defendants Village of Oak Park (the "Village"), Village Police Chief Keith Bergstrom, Village Attorney Raymond Heise, and Police Officers David Chapman and Brian Slowiak alleging that defendants subjected plaintiff to selective prosecution as well as threats and harassment in violation of plaintiff's constitutionally protected rights of free speech, due process, and equal protection. Defendants Chapman and Slowiak (hereinafter "defendants") move for summary judgment pursuant to Federal Rule of Civil Procedure 56.

 FACTS

 According to defendants' 12(l) statement, *fn1" plaintiff Bennett was the sole proprietor of a gas station in Oak Park, Illinois from 1969 to June, 1987. On May 7, 1985, he began operating a food mart in conjunction with his gas station.

 After several robberies at his gas station in December, 1980, Bennett began wearing a handgun while at the gas station. (12(l) Statement, para. 11.) In November, 1981, Bennett's decision to wear a handgun in full view at the gas station became the focus of local and national media attention. (Id. at P 12.) Within two weeks of this attention, Village officials contacted Bennett to inquire about his carrying of the handgun, and two detectives visited Bennett to inform him that he would be arrested should he continue to wear the gun. (Bennett Aff., p. 89.) Initially, Bennett complied, but soon he resumed wearing the gun. (Id. at 90.)

 The day after the acquittal, defendant Village Police Officer Brian Slowiak appeared in uniform at Bennett's station and asked Bennett if he could speak to him in Bennett's back office. (Bennett Aff., pp. 146-47.) After the two men entered the back office, Slowiak closed the door and told Bennett that he had a problem with Bennett's comments to the media about the Oak Park Police Department. (Slowiak Aff., p. 34.) Slowiak wanted the public to realize that uniformed police officers had nothing to do with Bennett's arrest. (Id.) According to Slowiak, Bennett told him he never had any problem with uniformed officers, and then the conversation ended. (Id. at 34-35.) According to Bennett, Slowiak told him that his comments to the newspapers were making the police officers look bad, and then said, "So why don't you just quit talking to the media? Keep your mouth shut and we'll all be better off." (Bennett Aff., pp. 147-48.) After Bennett told Slowiak that the press misquoted him, Bennett claims that Slowiak said, "I'm just warning you that you better keep your mouth shut and quit talking to them and we'll be better off, too." (Id.)

 In January, 1987, Bennett and Village President Clifford Osborn got into a heated exchange at a Village meeting. (Zangrelli Aff., pp.59-62, 67-68.) Village Trustee Patricia Andrews, the wife of defendant Officer David Chapman, entered into the exchange on Osborn's behalf. (Mem. in Opposition, Exhibit 6.)

 On February 23, 1987, defendant Anthony Frencher stopped at Bennett's gas station. Frencher and Bennett got into a dispute over the refund of twenty-five cents that Frencher claimed to have lost in the station's air pump. (Chapman Aff., p. 52.) When the argument escalated and Bennett refused to give Frencher twenty-five cents, Bennett pulled out a gun. Frencher left the station and called the police. (Id. at 38-39.)

 Officer Osborn was in uniform on patrol when he responded to a radio call regarding a "man with a gun" at Bennett's gas station. (Id. at 34.) Chapman arrived at the station where he interviewed Frencher and Bennett. (Id. at 38, 47.) He thereupon arrested Bennett for aggravated assault, and did not arrest Frencher. (Bennett Aff., p. 178.)

 DISCUSSION

 Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment the evidence of the non-movant must be believed, and all justifiable inferences must be drawn in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). There is no issue for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S. Ct. at 2511. Summary judgment must be granted "against a party who fails to make a showing sufficient to ...


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