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BENNETT v. VILLAGE OF OAK PARK

August 13, 1991

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. § 1983 against defendants Village of Oak Park (the "Village") and several Village officials and police officers alleging that defendants retaliated against Bennett, including selectively prosecuting him, in violation of Bennett's constitutionally protected right to freedom of expression. Defendants Village of Oak Park, Police Chief Keith Bergstrom, and Village Attorney Raymond Heise (the "defendants") move for summary judgment pursuant to Federal Rule of Civil Procedure 56. *fn1"

 The general facts of this case have been presented in this court's memorandum opinion of October 25, 1990, see Bennett v. Village of Oak Park, 748 F. Supp. 1329, 1331-32 (1990), and specifically relevant facts are recounted below. Count I alleges that defendants took certain actions in retaliation for Bennett's exercise of his First Amendment right of expression. (Amended Complaint, para. 58.) In Count II, Bennett alleges that defendants selectively prosecuted him in retaliation for exercising his First Amendment rights. (Amended Complaint, Count II, para. 24.) For the reasons set forth herein, defendants' motion for summary judgment is granted. *fn2"

 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). Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).

 In Count I Bennett alleges that defendants violated his First Amendment right of expression by retaliating against him for his views on handgun control and for statements he made to the media.

 Bennett sets forth activities undertaken by defendants which he believes establishes that defendants were retaliating against Bennett's expression. These activities include commencement of surveillance on Bennett, opening a "notorious persons file" on Bennett, and establishing a standing order to arrest Bennett on handgun charges. (Mem. in Opposition, pp. 11-12.) Bennett also sets forth evidence indicating the high priority that defendants placed on arresting Bennett for violating the Handgun Ordinance. (Id. at 12-13.)

 These allegedly retaliatory acts were steps that led to the ultimate prosecution of Bennett for violating the Handgun Ordinance. When a municipality suspects that certain individuals are violating the law under circumstances in which retaliation is not an issue, the court does not believe, and Bennett does not dispute, that there is anything improper about the municipality taking investigatory steps such as the ones alleged here prior to making an arrest. Thus, the propriety of these pre-prosecution activities in this case depends upon the propriety of the prosecution of Bennett. If the evidence does not support Bennett's claim in Count II that he was selectively prosecuted for retaliatory purposes, then Bennett has also failed to show that the pre-prosecution activities alleged in Count I were substantially motivated by retaliatory purposes. See Rakovich v. Wade, 850 F.2d 1180, 1189 (7th Cir. 1988).

 II. COUNT II

 Count II of Bennett's complaint is a claim that defendants selectively prosecuted Bennett in retaliation for Bennett's expressive activities.

 The factual basis for this claim is not in dispute. As stated above, defendants undertook certain pre-arrest activities including commencement of surveillance on Bennett, opening a "notorious persons file" on Bennett, and establishing a standing order to arrest Bennett on handgun charges. On or about March 26, 1986, Bennett's gas station was robbed at gunpoint. After the robbers fled the station, Bennett ran out the door, grabbed his handgun out of his truck, and ran towards an alley located just east of the gas station where he had seen the offenders flee. One of the offenders turned, looked down the alley, saw Bennett, and fired a shot at him. The offenders jumped in a car and Bennett stepped out into the alley and fired four or five shots at the vehicle. Bennett then telephoned "911" to report the robbery. Oak Park police arrived at the scene and investigated the robbery. Bennett told an officers that he had fired shots at the escaping vehicle with his handgun. Approximately two hours later, the officer returned and advised Bennett that he would have to take the handgun to the police station. Bennett gave him the handgun. (Plaintiff's 12(n) Response, paras. 16-18.)

 Later that day, Chief Bergstrom convened a meeting with Village Attorney Heise and other officers to review the Bennett incident. At the meeting, Heise opined that there was probable cause to believe that Bennett violated the Handgun Ordinance and, consequently, Heise personally authorized the charge against Bennett. Bergstrom ordered his arrest after deciding that both factual and legal grounds to arrest existed. Bergstrom concluded that Bennett "in effect was ...


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