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FRIGO v. GUERRA

July 12, 1994

JOHN E. FRIGO, Plaintiff,
v.
SGT. FRANK GUERRA, et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 John Frigo ("Frigo") has sued Illinois State Police Sergeants Frank Guerra ("Guerra") and Mark Stevens ("Stevens") under 42 U.S.C. ยง 1983 ("Section 1983"). Frigo charges them with two violations of his Fourth Amendment *fn1" rights to be free from unreasonable seizure, one by having arrested him without probable cause and the other by having subjected him to excessive force in the course of that arrest. Guerra and Stevens have moved under Fed. R. Civ. P. ("Rule") 56 for summary judgment, and their motion is fully briefed and ready for decision. *fn2" For the reasons stated in this memorandum opinion and order, Guerra's motion is granted while Stevens' is granted in part and denied in part.

 Facts

 Guerra and Stevens work undercover. Stevens, a Master Sergeant, is Guerra's supervisor.

 In June 1992 Guerra set up a reverse drug sting under which he agreed to sell five kilograms of cocaine to Alfredo Nevarez a/k/a Tony Garcia ("Nevarez"). On the morning of June 27 Nevarez phoned Guerra, who gave him directions to a K-mart parking lot off of Route 30 near I-80 in New Lennox, Illinois, where the deal was supposed to go down. Nevarez told Guerra that he would be travelling in a beige Thunderbird and that he planned to show up accompanied by other individuals.

 As supervisor of Guerra's squad Stevens was in charge of surveillance and positioning other officers during the course of the operation. He waited in civilian clothing in an unmarked blue Thunderbird parked in the southeast corner of the parking lot, from which vantage point he eventually observed a white Chevrolet and Frigo's pewter-colored (dull silver) Thunderbird turn into the lot and stop near some dumpsters.

 Next Stevens saw three individuals get out of the two cars, one of whom (Nevarez) then walked over and entered Guerra's black Firebird. After that brief encounter, Stevens watched Nevarez return to the Chevrolet and leave the area via Route 30, followed by the Thunderbird. Though Stevens could no longer see the vehicles himself, he learned of developments via radio from other officers stationed all around the area: Guerra had agreed to reconvene at a nearby Speedway gas station per Nevarez' request, and Stevens was continuously apprised of the parties' whereabouts.

 Because that money-for-drugs showing supported an arrest, a signal was given and Nevarez and Unzueta were taken into custody. Closer inspection of the gym bag revealed that it also contained a gun. Upon learning that the third individual was being pursued, Guerra immediately transmitted a radio broadcast warning all surveillance personnel that the suspect might be armed.

 Frigo's account of those events varies from that of the law enforcement agents in several key respects. *fn3" Frigo testified that on the day in question he picked up his friend Unzueta and had agreed to follow one of Unzueta's buddies to drop off a car in Joliet. After the two cars stopped for gas, Unzueta went over to speak with the driver of the Chevrolet and then assertedly told Frigo he was going to stay with his buddy. Having no other business in New Lennox, Frigo set out for home. *fn4"

 Before he did so, however, Frigo pulled out of the Speedway station and onto the westbound shoulder of Route 30 (Frigo Dep. 108-09). Though he lived to the east, Frigo explained that he was parked there because he wanted to pick up one of his cassette tapes from the floor before he turned around and headed back (id. 109). When he looked up, Frigo said, he was startled to discover a man in a car pulled up alongside him and pointing a gun at him (id.). Frigo took off down the shoulder and a chase ensued toward I-80. At one point when traffic became too heavy Frigo and his pursuer left the highway by way of an entrance ramp (id. 120-21). Later Frigo (at that point he was followed by two cars) U-turned across a grassy median (id. 124-27), after which he finally stopped and left the Thunderbird. At that point, Frigo said, he was hit in the face, tackled and kicked before being arrested and handcuffed.

 To return to Stevens' story, he says that he observed Frigo leave the Speedway station and park about 150 feet away facing west on Route 30, so that Frigo was in a position to observe whatever transaction took place between the other men. Just as Stevens heard the arrest signal indicating that the bust had been completed, he saw Frigo accelerate westward at a high rate of speed. Stevens took off in pursuit, claiming that his car had its "wig-wag" lights flashing and siren blaring (as stated later, Frigo denies that--and this opinion must credit Frigo's version). Stevens testified that when the cars eventually came to a halt on the side of the road, Special Agents Kevin Lane ("Lane") and Wayne Struska ("Struska") approached Frigo's Thunderbird, announced their office and advised him to leave his vehicle. Instead Frigo slammed his car into reverse, backing into Stevens' recently-vacated squad car.

 According to Stevens, after a brief struggle Lane and Struska removed Frigo from his car and subdued him face down on the ground while Stevens, with some difficulty, eventually succeeded in handcuffing him. At no point, Stevens contends, did any of the officers strike Frigo's body (but this opinion must credit Frigo's contrary version in that respect). Stevens relates that when he asked Frigo why he had fled, Frigo told him that "he'd been arrested before and didn't want to go back to jail" (Stevens Dep. 65)--another statement that Frigo denies and that is accordingly discredited on the current motion.

 Frigo's Section 1983 action claims that he suffered permanent injuries to his face and head. He sues Guerra and Stevens for $ 150,000 each in compensatory damages and another $ 200,000 each in punitive and exemplary damages.

 Invocation of Fourth Amendment Principles

 Chief Justice Rehnquist's plurality opinion in Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807, 811-12 (1994) provides a succinct statement of the province of Section 1983 and the initial methodology for calling it into play:

 
Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 144, n.3, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). The first step in any such claim is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, ...

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