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January 18, 1991

CALLIE BRYANT, et. al., Plaintiffs,
WILLIAM WHALEN, et. al., Defendants

Edward A. Bobrick, United States Magistrate.

The opinion of the court was delivered by: BOBRICK


 Before the court is the motion of defendants William Whalen, et al., for partial summary judgment as to four counts of the complaint of plaintiff Callie Bryant, et al.

 The individual defendants in this case, William Whalen, Eldon Urbikas, James Kelly, Steven Schweiger, and John Behnke, are all Chicago police officers. Plaintiffs Cassandra Seay and her children, D'Artagnan Seay, David Seay, and Wenndi Seay are members of a family residing on West Potomac Street in Chicago. Plaintiff Callie Bryant resides on South Parnell Avenue in Chicago, and is Cassandra Seay's mother. This case stems from an encounter between defendant police officers and the family on July 21, 1987. As a result of that encounter, defendant police officers arrested plaintiffs Callie Bryant and Cassandra, D'Artagnan, and David Seay, on various misdemeanor charges. Plaintiffs filed a six-count complaint alleging that the defendant police officers violated their Civil Rights. In addition, plaintiffs named the City of Chicago as a defendant, alleging that the violation of their Civil Rights was a direct and proximate result of the City's unconstitutional policies. The defendant police officers now move for summary judgment on three counts of the complaint, and the City moves for summary judgment on the count in which it is named.


 The party moving for summary judgment bears the burden of establishing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The moving party may meet this burden by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S. Ct. at 2553. Any doubt as to whether there is indeed a genuine issue for trial must be resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).

 If the moving party meets its burden, then the burden shifts to the nonmoving party to present specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S. Ct. 1348, 1355-1356, 89 L. Ed. 2d 538 (1986). The nonmoving party is required to "go beyond the pleadings" and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. The court must then determine:

 Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. In order for an issue to be genuinely disputed, there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249, 106 S. Ct. at 2510. Thus, this Magistrate Judge must review the record the parties have compiled with these factors in mind in order to determine whether the defendants have established entitlement to summary judgment on any or all of the claims at issue. This Magistrate Judge will first address those claims relating to the individual defendant police officers, and then consider the claim plaintiffs bring against the City.


 Plaintiffs bring five counts of their six-count complaint against the individual police officers. Plaintiffs bring Counts I through III, sounding in unlawful entry, false arrest, use of excessive force, under 42 U.S.C. § 1983. Counts IV and V are common law claims charging malicious prosecution, and intentional infliction of emotional distress. The defendant police officers have moved for summary judgment as to Counts I, II, and IV -- those counts sounding in unlawful entry, false arrest, and malicious prosecution. With respect to Count II, the defendants' motion addresses only those false arrest claims advanced by D'Artagnan Seay; with respect to Count IV, defendants move for summary judgment only as to the claims of D'Artagnan and David Seay.


 Many of the details of the encounter between the defendant police officers and plaintiffs are in dispute, making it difficult to fashion a narrative which would accurately represent the flavor of the incident. The parties do seem to agree on a substantial portion of the tale, however, and that portion will provide the basis for the narrative account set forth here. Where details are required for continuity, and the parties' versions of those details diverge, both sides' perspectives will be represented and that divergence will be noted.

 Early on the evening of July 21, 1987, fourteen-year-old D'Artagnan Seay was playing football on Kamerling Avenue, approximately one half-block from his home. According to D'Artagnan, he broke the back window of a van parked on the street by accidently striking it with a football. (See Defendants' Rule 12(L) Statement, para. 1, citing D'Artagnan Seay's; Exhibit 1, ("Seay St."), at ls. 3-4). The van owner's son was apparently on the street at the time, and went to get his father, Carl Lee Cross. (Id. at para. 2, Seay St. at ls. 5-6). Mr. Cross confronted D'Artagnan about the broken window and, during the ensuing discussion, D'Artagnan gave Mr. Cross his home address. (Seay St. at ls. 7-8). D'Artagnan then returned home, and Mr. Cross called the police to report the incident. (Defendants' 12(L) St., at para. 2).

 At approximately 7:30 p.m. on that evening, defendant police officers Whalen, Urbikas, and Kelly were cruising in the vicinity, and monitored a call of "criminal damage to property" concerning Mr. Cross' van. (Defendants' 12(L) Statement, at para. 3). Defendant police officers Schweiger and Behnke also responded to the call. (Id. at para. 4). All five defendant police officers apparently went to Mr. Cross' home first, and were then directed to D'Artagnan's home. (Id. at para. 5). When they arrived at the home, Whalen, Kelly, and Schweiger went to the front door, while Urbikas and Behnke covered the back door. (Id. at para. 6).

 As might be expected, it is at this point that the parties' stories begin to differ. It is no surprise that the defendant police officers' version is an attempt to paint a picture of brave knights venturing into hostile territory to perform their sworn duty, only to be met with violent resistance which they overcame with a measured response. It is also no surprise that the plaintiffs depict themselves as a quiet, peace-loving family which was attacked by a band of stormtroopers without any provocation. Because this portion of the story is in substantial dispute, the parties' statements of facts will be eschewed and the versions will be drawn from their trial briefs.

 According to the defendant police officers, Whalen, Kelly and Schweiger rang the front door bell and knocked on the window until D'Artagnan's grandmother, Callie Bryant, answered the door. The defendant police officers informed Bryant that they needed to speak with an occupant of the house about the broken van window. Just then, the defendant police officers were interrupted by Cassandra Seay, D'Artagnan's mother, who demanded to know why the police were at her house. The defendant police officers again explained about the youth and the broken van window. Cassandra Seay responded by saying that she had called the police the night before about a stolen automobile but no one ever came. When the defendant police officers again explained their purpose, Cassandra Seay became abusive and an argument ensued. Cassandra Seay then pushed Whalen in the chest, and Whalen informed her that she was under arrest. At that point Callie Bryant stepped between Whalen and Cassandra Seay. While Schweiger handcuffed Callie Bryant, Whalen and Kelly pursued Cassandra Seay into the house, where she kicked Whalen in the knee. The defendant police officers again told Cassandra Seay she was under arrest and attempted to handcuff her. Cassandra Seay resisted and Whalen and Kelly wrestled her to the floor.

 Meanwhile, Urbikas and Behnke, stationed at the back door, heard the struggle inside and broke down the back door to enter the house. When they did, they observed D'Artagnan Seay moving from the rear of the house toward Whalen and Kelly, with a baseball bat raised over his head. Urbikas, with gun drawn, *fn1" ordered D'Artagnan Seay to drop the bat, to which he complied. *fn2" David Seay then stepped in between D'Artagnan Seay and the defendant police officers. Finally, Cassandra, D'Artagnan, and David Seay were all handcuffed. As a result of the skirmish, Whalen's leg was bruised and his hand was cut; Kelly's hand was also cut.

 The defendant police officers then transported the arrestees to the 25th District Police Station for processing, stopping once to confirm information at the house of Mr. Cross. When asked where she worked, Callie Bryant said "at OPS" -- the Office of Professional Standards. When a check revealed she did not work there, she was charged with false impersonation. Following a trip to the washroom, Cassandra Seay complained of bleeding from her vaginal area, and she was taken ...

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