officers. According to plaintiffs, Philip Owusu merely commented that the officers were free to take the children, but he would not hand them over. Thus, plaintiffs claim they did nothing constituting obstruction.
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 qualified immunity from damages for both of these alleged violations.
1. Unlawful Entry
Plaintiffs allege that the officer defendants unlawfully entered the Owusu Home. (Amended Complaint, Count I, para. 11.) Specifically, plaintiffs claim that the Chicago officer defendants
initially entered their home, followed an hour or so later by the Dolton
officer defendants. Because the circumstances of their respective entries vary, the court first shall analyze the entry of the Chicago officer defendants and then the entry of the Dolton and Riverdale officer defendants. The court shall address the Section 1983 liability of the municipal defendants last.
a. Entry of the Chicago Officer Defendants
The qualified immunity issue with respect to the Chicago officer defendants is whether in 1988 an official violated a clearly established constitutional right by entering a home without a warrant and without consent or some other exception to the Fourth Amendment's warrant requirement. The answer is yes.
In 1980 the Supreme Court held in Payton v. New York that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. 445 U.S. 573, 576, 100 S. Ct. 1371, 1374-75, 63 L. Ed. 2d 639 (1980); see also Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732 (1984) ("Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.")
In this case there remains a genuine issue of material fact as to whether Lucy Owusu gave the Chicago police officers consent to enter her home. As noted above, according to plaintiffs, after Officer Grzyb either knocked on the door or rang the bell of the Owusu home, Lucy Owusu came to the door. She opened only the heavy front wooden door of her home, leaving the screen door shut. Plaintiffs claim that either Officer Grzyb or Officer DiGrazia then opened the storm door and both officers, without asking or receiving permission, simply entered the Owusu home. (12(m) Statement, para. 23.) Officers Grzyb and DiGrazia, on the other hand, maintain that Lucy Owusu invited them into her home. (Grzyb and DiGrazia Aff.'s at para. 8.)
On defendants' motion for summary judgment this court must believe the evidence of plaintiffs, drawing all justifiable inferences in their favor. Anderson, 477 U.S. at 255, 106 S. Ct. at 2513. Accepting plaintiffs' version of the facts as true as the court must for the purpose of this motion, the Chicago officer defendants entered the Owusu home with neither a warrant nor consent. Cf. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1344 n. 9 (7th Cir. 1985) ("Simply opening a door to identify a person is far different from granting permission to enter the premises."). By so doing under requisite construction of the facts for the purpose of this motion, the Chicago officer defendants violated a clearly established constitutional right of the Owusus of which a reasonable officer would have known. Accordingly, the Chicago officer defendants' motion for summary judgment on Count I of plaintiffs' amended complaint must be denied.
b. Entry of the Dolton and Riverdale Officer Defendants
The Dolton and Riverdale officer defendants' motions for summary judgment on Count I of the amended complaint raise a different issue. In response to calls for assistance, the Dolton and Riverdale officers arrived at the Owusu home over an hour after the Chicago officer defendants. The various Dolton and Riverdale officers either were let into the Owusu home by the Chicago officers or merely opened the screen door and let themselves into the home.
Plaintiffs assert that these officers failed to make an independent determination that the Chicago police officers had neither a warrant nor an exception to the warrant requirement, and thus entered the Owusu home unlawfully. The Dolton and Riverdale officer defendants correctly respond, however, that they are entitled to qualified immunity because it was not clearly established that absent circumstances indicating an unlawful entry, a police officer cannot, in responding to a call for assistance, rely upon the earlier entry into a suspect's home by a fellow police officer.
Plaintiffs cite Smith v. Heath, 691 F.2d 220 (6th Cir. 1982) for the proposition that each officer entering a home has an independent duty to be certain he is doing so lawfully. However, the Smith case does not stand for that broad proposition.
The plaintiff in Smith committed a minor traffic offense in front of his motel. Aware of the traffic offense, a police officer went to the door of the plaintiff's motel room, which had a sign on it marked "Private Keep Out." Nonetheless, the officer kicked the door open and forced his way inside. With his gun drawn the officer walked through the kitchen of the plaintiff's motel room, opened the bedroom door and fired repeatedly at the plaintiff, gravely wounding him.
After receiving a call on his car radio about the shooting incident and possible homicide, a homicide detective in charge of this particular investigation drove to the plaintiff's motel room. When he arrived the detective found the door to plaintiff's motel room open and other officers -- who had arrived on the scene shortly before the detective -- already inside.
The detective ordered the plaintiff's relatives into a back room and told them to stay there, without either inquiring as to their knowledge of the events surrounding the shooting or explaining the officers' presence or actions. The detective then directed the other officers to seize evidence, without limiting their search in any way.
With no apparent justification, the plaintiff's van was impounded and taken away. Although the police ransacked the motel room, no evidence of illegal acts or activity was uncovered.
The Sixth Circuit Court of Appeals affirmed the district court's denial of the detective's claim of qualified immunity. It did so, however, in reliance on the district judge's specific finding that the detective and the officers:
knew their actions to be improper; that they were not performing routine or normal police procedure; that they had "ulterior" motives in undertaking a warrantless, unconstitutional search and that no probable cause existed for their conduct.
Id., 691 F.2d at 226. The words of the district judge best describe the gravity of the constitutional violation apparent in Smith :
in an effort to find some evidence to mitigate the impact of those unconstitutional acts [(the officer's entry into the motel room and shooting of plaintiff), the detective] and his subordinates engaged in an unconstitutional orgy of unique proportions. They were not performing routine nor normal police procedures.