of force was used in arresting plaintiff Rice. In fact, the amount of force used in arresting plaintiff Rice is a matter which will require a factual determination, as is the question of whether use of that amount of force was objectively reasonable under the totality of the circumstances.
With respect to plaintiff Samson, defendants argue in their memorandum in support of the motion for summary judgment:
Samson's claim has the same analysis as Rice's. At the time of this incident, it was not clearly established law that a person who was told that he was "under arrest" had the right to refuse to place his hands behind his back when ordered to do so by a police officer. Defendants, under Illinois law, had the right and duty to effect the arrest of Samson. Samson admitted he was told he was under arrest, but refused to allow himself to be handcuffed by struggling and flailing his arms. If Samson has any injuries, it is his own fault. As stated earlier, the officers need not retreat from a person who is told that he is under arrest.
Again, defendants are asking the court to require citation to authority that the very action in question had previously been held unlawful; a specificity not required for plaintiff Samson's excessive force claim to survive this motion for summary judgment on qualified immunity grounds. The same sort of factual questions that remain with respect to plaintiff Rice's claim of excessive force remain with respect to plaintiff Samson's claim of excessive force; i.e., questions of how much force was used and whether that amount of force was reasonable under the totality of the circumstances.
Defendants further contend:
Samson's alleged injuries are sores and bruises which did not require any medical attention. Moats v. Village of Schaumburg, 562 F. Supp. 624, 630 (N.D. Ill. 1983), held that the absence of proof of permanent or serious physical injury means no liability for a section 1983 claim. Here, Samson was not physically injured. Defendants are entitled to summary judgment on any excessive force claims.
These statements are not factually accurate. Plaintiffs stated as facts precluding summary judgment:
24. SAMSON was struck numerous times with a baton which resulted in visible bruises. . . .
25. SAMSON'S physical injuries made him unable to work for a week. . . .
The deposition excerpts cited by plaintiffs support these statements. There is evidence that plaintiff Samson suffered physical injuries; and the Moats case cited was decided under an inapplicable Fourteenth Amendment due process standard. See Moats v Village of Schaumburg, 562 F. Supp. 624, 630 (ND Ill 1983); Graham v Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). This argument of defendants is therefore without merit.
Defendants are not entitled to summary judgment on qualified immunity grounds or on the ground that plaintiff Samson did not suffer physical injuries on the excessive force claims of plaintiffs.
ORDERED: Defendants' motion for summary judgment is granted in part and denied in part.
The motion for summary judgment is granted with respect to the claims of plaintiffs concerning the legality of their arrests. The motion for summary judgment is denied with respect to the excessive force claims of both defendants.
George W. Lindberg
United States District Judge
Date: MAY 28 1992
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