The opinion of the court was delivered by: JOHN A. NORDBERG
August Smith brought this Section 1983 action against the City of Joliet for damages arising from an incident on February 21, 1986. On that day, according to Smith, two Joliet police officers detained him with unnecessary and excessive force, causing mental and physical injury. Smith has forgone suit against the officers themselves, instead suing the City for "engaging in a pattern of knowing and deliberate indifference to the use of excessive and unnecessary force in the arrest and detention of black persons and other persons who were of minority ancestry or culture." Smith had also set forth a second count alleging a conspiracy to violate his constitutional rights, but voluntarily dismissed it on April 25, 1990. Now before the court is defendant's motion for summary judgment. For the reasons stated below, that motion is granted.
Some time later, another car pulled in front of his, and two men emerged. Smith later discovered that both men were Joliet police officers, but at the time neither man identified himself, and their car was unmarked. According to Smith, one of the men pulled him out of the car, "slung" him up against the car, told him to put his hands on the roof of the car, pointed a gun at the back of Smith's head, "jammed" Smith's chest against the car roof, and "poked" the gun in Smith's ribs. Smith Dep., 37-46, 56. While one officer so engaged Smith, the other conducted a search of Smith's car. After 20 minutes or so, Smith's son arrived in his own car. At that point, the officers returned to their car and left, no arrest of Smith having been made.
This incident was simply one in a series of events representing a pattern of harassment against minorities by the Joliet police, according to Smith. His complaint alleges that incidents of excessive force took place in 1963, 1969, 1974, 1977, 1978, 1981, 1985, 1986, and 1988. Together, says Smith, these incidents indicate "a policy on the part of [the City of Joliet] to actually foster and approve the use of excessive force." Amendment to Complaint, p. 1. Defendant moves for summary judgment on two grounds. First, defendant argues that the treatment of Smith by the Joliet police officers, taking as true Smith's account of the event, does not give rise to a constitutional violation. Second, says defendant, Smith has failed to present competent evidence of an unconstitutional policy or custom on the part of the City of Joliet. As explained below, defendant is correct on both counts.
Summary judgment is appropriate if the pleadings, answers to interrogatories, admissions, affidavits and other materials show "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." F.R.C.P. 56(c). No genuine issue exists "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986). The non-moving party is entitled to the benefit of all favorable inferences which can reasonably be drawn from the underlying facts; however, only reasonable inferences will be drawn, not every conceivable inference. DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987).
Smith's complaint charges defendant City of Joliet with encouraging the use of excessive force by its police officers. The incident underlying this allegation is Smith's encounter with two Joliet police officers on February 21, 1986. Smith's case against the City of Joliet cannot go forward if his underlying encounter did not raise constitutional problems:
If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.
City of Los Angeles v. Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806 , 106 S. Ct. 1571 (1986) (emphasis original). The critical question, then, is whether the officers who detained Smith used unconstitutionally excessive force against him.
Where, as here, an excessive force claim "arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment. . ." Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1871 , 104 L. Ed. 2d 443 (1989). Determining whether force used to effect a seizure is "reasonable" under the Fourth Amendment
Graham, at 1871 (citations omitted). The test, in short, is one of "objective reasonableness," to be determined from the totality of the circumstances. O'Toole v. Kalmar, 1990 U.S. Dist. LEXIS 1934, slip op. at 7 (N.D. Ill. 1990). Because the governing test is objective, excessive force claims are "susceptible to summary judgment ...