The opinion of the court was delivered by: HOLDERMAN
JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE
Plaintiffs Philip, Seth, Daniel and Lucy Owusu filed their amended complaint in this case alleging that members of the Chicago, Dolton and Riverdale police forces unlawfully entered their home and arrested Philip, Seth and Daniel. Plaintiffs have named as defendants the individual officers who entered plaintiffs' home and were present during the arrests, as well as the three municipalities which employed the various police officers: the City of Chicago, the Village of Dolton and the Village of Riverdale.
Defendants now have moved for summary judgment on the amended complaint. For the reasons stated below, their motions must be granted in part and denied in part.
Philip and Lucy Owusu are married to each other and live at 13822 State Street, Riverdale, Illinois. They have two sons -- Daniel and Seth -- and two daughters -- Cynthia Asiedu and Theresa Achampong.
Philip and Lucy Owusu's daughter Theresa was married to Cristos Achampong. They had two children -- Mizpah Achampong and Kwadwo Achampong. Theresa also had a child by a former marriage, named Vivian Lawrence.
On January 2, 1988 Theresa died. Thereafter, Philip and Lucy Owusu adopted Vivian. Marina and Geoffrey Coleman, friends of Theresa's living in Wisconsin, became the legal guardians of Mizpah and Kwadwo.
On Wednesday, November 23, 1988 Marina Coleman drove to Chicago to pick up furniture for her home in Wisconsin. She brought Mizpah and Kwadwo with her.
That evening she, Mizpah and Kwadwo met with members of the children's family, including their grandparents, Philip and Lucy Owusu. At that meeting arrangements were made to get together the next morning, Thanksgiving Day.
On the morning of Thanksgiving Day Philip Owusu, Cynthia Asiedu and Vivian Lawrence arrived at Marina Coleman's motel room. While Ms. Coleman was getting ready for the day she agreed to allow Mizpah and Kwadwo to go with Philip, Cynthia and Vivian to breakfast, with the understanding that they would return to the motel room. However, after breakfast, instead of returning Mizpah and Kwadwo to the motel room, Philip Owusu took them to his home in Riverdale. He told Ms. Coleman on the telephone that he would not return the children.
The next day, Friday, November 25, Ms. Coleman drove back to Chicago with records relating to her legal guardian status. At 6:30 p.m. she presented these records to the Chicago police. Ms. Coleman filed a formal complaint, which Chicago police youth officers Daniel Grzyb and Frank DiGrazia were assigned to investigate. While at the police station Ms. Coleman told Officer Grzyb that she feared that the Owusus -- who are citizens of Ghana -- might take Mizpah and Kwadwo to Africa.
According to plaintiffs, the next day, Saturday, November 26, Officer Grzyb read and reviewed the General Offense Case Report concerning Ms. Coleman's complaint. He then drove with Officer DiGrazia to meet Ms. Coleman, but she was not in. Later, Officer Grzyb telephoned Ms. Coleman two or three times to see if she thought Philip Owusu would be home. Ms. Coleman told Officer Grzyb that she thought the Owusus probably would be at church in the morning and thus would not be home until afternoon.
At 1:50 p.m. Saturday Officers Grzyb and DiGrazia arrived at the Owusu home. According to plaintiffs, Officer Grzyb either knocked on the door or rang the bell of the home. Lucy Owusu was home at the time having lunch with Mizpah, Kwadwo and other family members. She came to the front door and opened the heavy front wooden door. According to plaintiffs one of the Chicago officers then opened the storm door and both officers entered the Owusu home, identifying themselves. The officers had no warrant.
Officer Grzyb then walked into the dining room of the Owusu home and asked the children sitting at the dining room table who Mizpah and Kwadwo were. Kwadwo, who at the time was seven years old, identified his sister, then age five, and himself. Officer Grzyb and DiGrazia then sat on the couch in the Owusu living room and waited for Philip Owusu to return home from church.
After about an hour Philip and Seth Owusu arrived at the Owusu house. Daniel Owusu arrived a short while later. The Owusus walked into the living room and spoke with Officers Grzyb and DiGrazia. According to plaintiffs, Philip Owusu told the officers to leave unless they had a warrant. Upon being informed by Officer Grzyb that the officers did not need a warrant, Philip Owusu questioned the genuineness of the guardianship papers the officers showed him. Plaintiffs claim Philip Owusu told the officers if they wanted to go in and take the two children they were free to do so, but he was not going to hand the children over to them.
One of the Chicago officers then radioed for assistance from the Riverdale police department. About ten minutes later Riverdale police officers Ray Gilmore and Gary Shadley arrived at the Owusu house and were let in the front door by the Chicago officer who called for assistance.
After further discussions with the Owusus, Officer Gilmore requested additional back-up. Dolton officers John Thomsen and Timothy Govern and Riverdale officers Ken Bonneau, Joseph Walker and John Golden responded to the call. Officer Thomsen and Govern, hearing yelling and screaming in the house, let themselves in the house. Officer Golden followed them into the house. One of the Chicago officers met Officers Walker and Bonneau on the front porch of the Owusu home and let them inside as well.
According to plaintiffs, the Owusus were arrested by Chicago Officers Grzyb and DiGrazia and Riverdale Officers Walker, Bonneau and Golden. Specifically, plaintiffs claim Officers Grzyb, DiGrazia and Walker arrested and handcuffed Philip Owusu. Officers Bonneau and Golden arrested Seth Owusu, who was shoved, wrestled to the floor and handcuffed in the process. And Officer Bonneau ordered the arrest of Daniel Owusu, who was in front of the Owusu home at the time. Daniel Owusu was grabbed, thrown to the ground and handcuffed.
Under Federal Rule of Civil Procedure 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 defendants' motions for summary judgment, the evidence of the plaintiffs as non-movants must be believed. All justifiable inferences must be drawn in plaintiffs' favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).
All defendants have moved for summary judgment on all six counts of plaintiffs' amended complaint. The court shall address each count in turn.
A. Count I: Section 1983 Claim
The officer defendants
claim that they are entitled to qualified immunity on Count I -- plaintiffs' claim brought under 42 U.S.C. Section 1983. Summary judgment is the proper manner to resolve a claim of qualified immunity because it protects government officials from the costs of trial. Rakovich v. Wade, 850 F.2d 1180, 1205 (7th Cir. 1988).
Under the doctrine of qualified immunity, "public officials performing discretionary functions are protected against suits for damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Doe v. Bobbitt, 881 F.2d 510, 511 (7th Cir. 1989), citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). This standard requires that "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987).
In Count I plaintiffs allege that the officer defendants violated their constitutional rights in two ways: (1) by unlawfully entering the Owusu home and (2) by unlawfully arresting Philip, Seth and Daniel Owusu. The officer defendants have claimed ...