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ALTO v. CITY OF CHICAGO

August 25, 1994

HORACE ALTO, Independent Administrator of the Estate of ANTHONY ALTO, deceased, Plaintiff,
v.
CITY OF CHICAGO, a municipal corporation; KEVIN EVANS, ANTHONY BRADLEY, CAROLE LOVE, LINDA WILLIAMS and MARCUS GREY, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Horace Alto, as administrator of the estate of Anthony Alto, brings this six-count complaint against the City of Chicago and Chicago Police Officers Anthony Bradley, Kevin Evans, Marcus Grey, Carole Love and Linda Williams. Before this court is defendant Anthony Bradley's Motion for Summary Judgment on Counts V and VI, brought under 42 U.S.C. ยง 1983 (1988), and Counts III and IV, brought under the Illinois Wrongful Death Act, 740 ILCS 180/1, 180/2 (1993), and the Illinois Survival Act, 755 ILCS 5/27-6 (1993). *fn1" For the reasons set forth below, defendant's motion is granted in part and denied in part.

 I. Summary Judgment Standard

 Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Rule 56(c)). Once the moving party has met this burden of production, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c); see Maxwell v. City of Indianapolis, 998 F.2d 431, 433 (7th Cir. 1993). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Casteel v. Pieschek, 3 F.3d 1050, 1052 (7th Cir. 1993).

 II. Background

 On or about September 16, 1991, for reasons not entirely clear, Anthony Alto ("Alto") allegedly swung at Chicago Police Officer Robert Perkins with a wooden two-by-four. As Alto fled from the scene, Officer Perkins called for assistance over his radio and began chasing Alto. Officer Carole Love, who was in the area, heard Perkins' call over the radio and upon making visual contact with Alto, also began pursuit. After chasing Alto down 72nd Street, Love was informed by an eyewitness that Alto had entered the residence at 7222 South Rhodes Street. However, Love herself did not see Alto enter the house and chose not to enter the building. Love later spoke with Perkins, who relayed to her the circumstances surrounding Alto's earlier attack. However, Love did not follow-up on the matter and did not seek an arrest warrant for Alto.

 Some two weeks later, on October 1, 1991, Love was on patrol with Officer Marcus Grey in a park near where the prior encounter with Alto had occurred. Love spotted Alto, and informed Grey that Alto was probably wanted for the prior attack on Perkins. Although the two officers were unable to contact Perkins over their radios to ascertain whether an arrest warrant had been issued for Alto, they nonetheless approached Alto to investigate further. Upon reaching him, both officers touched Alto's arm and Love indicated that they wished to speak with him. At this moment, Alto ran from the officers and out of the park. When Alto failed to obey Love's order to stop, Love and Grey gave chase. Love announced over her radio that she was in pursuit of a suspect wanted for the aggravated assault of a police officer. Love and Grey chased Alto to 7222 South Rhodes, where Love saw Alto enter the house.

 As Officer Love entered the vestibule of the house she was met by three men, including Alto's brother and his father, Horace Alto. After a brief conversation with the three men, Love observed Alto in the hallway brandishing a knife approximately seven to eleven inches long and telling Love that he was not going to go to jail. Love radioed that Alto was now holding a knife, and told Alto to drop the weapon. However, Alto refused to drop the knife and a boisterous altercation ensued.

 At about this time, Officers Anthony Bradley, Linda Williams and Kevin Evans, who were responding to Love's request for assistance, arrived at 7222 South Rhodes. Although Bradley had not heard that Alto was suspected of committing an aggravated assault against another police officer, he was aware that Alto was threatening fellow officers with a knife. Bradley and Evans ran around the back of the house, where they continued to hear shouting from inside the house concerning Alto's refusal to drop the knife. Both officers then drew their weapons and Bradley entered the rear of the building with Evans following him.

 Once inside, the two officers moved toward the front of the building where the confrontation between Alto and the other officers was occurring. Upon approaching the front of the house, Bradley and Evans observed Alto with the knife in his hand. Bradley ordered Alto to back away from the front door and drop the knife. Alto complied with the first request, but refused to relinquish control of the knife and again stated his intention not to go to jail. After further requests by Bradley, Alto eventually threw the knife on a nearby bed. Bradley then ordered Alto to lay face down on the floor. Alto complied, but only after repeated directions from Bradley. *fn2" Bradley, still holding his firearm, then stepped over Alto in order to handcuff him. At that moment Alto jumped up, knocked Bradley backwards, and struck Bradley in the face with his fist. Alto then grabbed Bradley's weapon and the two struggled over the firearm. Although Bradley did not feel the trigger being pulled, the weapon discharged in the struggle and the two fell back onto a nearby chair. It was later determined that the bullet from Bradley's gun had caused a fatal wound in the left side of Alto's chest. Since Alto was still clutching the gun, Bradley pulled the weapon away from Alto as he pushed him away. Alto fell back onto a nearby couch and faced Officer Evans. Officer Evans then fired two shots at Alto. At this time additional police officers entered the room and the emergency personnel were summoned. Alto died sometime later due to the gunshot wounds he sustained.

 III. Discussion

 A. Section 1983 Claims (Counts V and VI)

 Essentially, plaintiff claims that Bradley violated Alto's federal civil rights in two ways: (1) conducting a nonconsensual, warrantless entry into Alto's home, and (2) using excessive force in entering the home with his weapon drawn. *fn3" Bradley moves for summary judgment on Counts V and VI, arguing that his entry into the house with weapon drawn was reasonable under the Fourth Amendment to the United States Constitution, and that he is entitled to protection from civil liability because of qualified ...


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