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September 30, 1994

ANDREW SLEDD, JR., Plaintiff,

The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of defendant officers Guy Lindsay ("Lindsay"), Elroy Baker ("Baker"), Ernest Brown ("Brown"), Herman Cross ("Cross") (collectively "defendant officers") for partial summary judgment. For the following reasons, the motion is granted.


 On March 30, 1989, defendant officers were law enforcement officers with the Chicago Police Department. On that date, Brown spoke with a confidential informant ("CI") concerning the illegal sales of controlled substances from a townhouse located at 1408 East 55th Street in Chicago ("townhouse"). The CI related to Brown that CI personally purchased narcotics from an individual known to the CI as Jessie Green ("Green"). The CI described Green as a 6'2", slender build, dark complected, black male living at the townhouse.

 Brown went to the address which the CI provided to verify whether a townhouse existed at the given location. For further verification, Brown contacted the utilities companies to ascertain the name of the occupant of the townhouse. The investigation revealed that an individual named Green did occupy the townhouse. Brown detailed the CI's information on a request for a search warrant. A judge subsequently signed a search warrant commanding defendant officers to search the townhouse and a black male identified as Green, approximately twenty-two years of age, slender build, and with a dark complexion. On March 31, 1989, between 8:30 p.m. and 9:00 p.m., Brown returned to the townhouse. He parked his vehicle in the parking lot located in the rear of the townhouse to conduct surveillance.

 On March 31, 1989, plaintiff Andrew Sledd, Jr. ("Sledd"), twenty-four years of age at the time, was living at the townhouse with his brother, Jessie Green, Jr., his mother Yvonne Greene ("Y. Greene"), and his father Jessie Green, Sr. ("J. Greene"). The front entrance of the townhouse faced 55th Street and the back entrance abutted a parking lot. The townhouse had large glass windows in the front and rear. Views from these windows were unobstructed. The rear side of the townhouse also had a large sliding glass door. Sledd's bedroom was located on the second floor in the rear.

 Brown observed a black male fitting the description of Green seated inside a room nearest to the rear patio of the townhouse. He also observed other individuals in the room with the black male. During the evening hours of March 31, 1989, Sledd's fiance, Maria Delos Reyes ("Reyes"), was visiting with Sledd and Verleen Ellis ("Ellis") was baby sitting Jesse Green, Jr. Additionally, Sledd's friend, Eric Carson, black male, 6'0" in height, twenty-eight years of age, was also visiting with Sledd until approximately 9:00 p.m. Brown stopped the surveillance and returned to the narcotics division to plan the execution of the search warrant. The discussion centered on the physical description of the townhouse and the scope of the search. Defendant officers were concerned about the large glass windows situated in the front and the back of the townhouse. They did not want to be discovered prior to the execution of the warrant.

 At approximately 10:15 p.m., defendant officers and three other Chicago Police officers converged on the townhouse to execute the search warrant. They wore civilian clothes rather than police uniforms. Defendant officers, however, brought their police issued baseball caps with the police emblem on the crown and bullet proof vests with police patches on the chest plates. Defendant officers knew that marks identifying them as police officers served as an announcement to the occupants of the targeted premise that they are not unlawful intruders. Approximately twenty minutes later, Brown noticed a light on the second floor go on and also observed movement inside.

 Sledd and Reyes were upstairs on the second floor in Sledd's bedroom. Reyes laid on Sledd's bed watching television while Sledd prepared to go to work that night. Also, the water in the sink and the bathtub was running in the adjoining bathroom. Brown radioed the others and apprised them of the development that a second floor light had come on and that someone was at home. Brown then walked over to join the other defendant officers. Defendant officers put on their bullet proof vests. They also put on police issued baseball caps with the Chicago Police Department insignia as they prepared to execute the warrant. Defendant officers proceeded to the front of the townhouse, and the other three officers covered the rear.

 As Sledd was just about to take a shower, defendant officers pounded on the front door of the townhouse. At the time of the pounding, Reyes was still lying on Sledd's bed watching The Tonight Show with Johnny Carson, and Ellis was lying down on a sofa in the living room, which was located on the first floor rear of the townhouse, watching the same program on television.

 Defendant officers banged on the front door a number of times while announcing their office and purpose. They knew that entering without announcing their office may cause the occupants to unwittingly use force to defend themselves. Cross heard voices coining from inside the townhouse before and after the knocking. Cross could not distinguish whether the voices were of the occupants or sounds from the television. Defendant officers waited for a response, but none came. Sledd and his neighbors did not hear the announcement of defendant officers.

 When defendant officers pounded on the front door, Reyes and Sledd were befuddled by the loud noise. Sledd grabbed a towel, wrapped it around his waist, and started down the stairs to the first floor. He assumed the noise was coming from the front door. Defendant officers continued their knocking because they did not hear any response from the occupants. The voices from the inside continued, but defendant officers could not determine whether the voices were live human or voices from the television. As Sledd descended the staircase leading to the first floor, he heard additional pounding noises emanating from the front door. Ellis was on the first floor.

 As the banging continued, Sledd did not call out to investigate who was at the door. None of the occupants made an inquiry. Not getting a response from inside, defendant officers employed a battering ram to effectuate a forced entry. When Sledd reached half way down the stairs, he saw the front door coming off its hinges. As the door came off the hinges, the door began to crack. Upon seeing this, Sledd ran back upstairs to the second floor. He went directly to his bedroom and retrieved his .22 caliber Marlin rifle.

 The front door swung open and defendant officers entered the front interior vestibule of the townhouse. When Ellis observed defendant officers in the vestibule, she realized that they were police officers by looking at their attire, badges, and patches on some of the officers. After gaining entry, Brown, Baker, and Lindsay proceeded up the stairs as they announced their office, "police officers, police officers, we have a search warrant.'" (Def.'s 12(M) Stmt. P 60.) Cross remained and secured the first floor.

 Once Sledd grabbed his rifle, which was loaded, he turned towards the bedroom door. He thought that someone was breaking into his house. Sledd heard voices coming from the first floor, but was unable to distinguish the words. Reyes crouched down behind the bed. As Sledd turned towards the bedroom door, he was holding his rifle across his body with his left hand on the stock and right hand near the trigger, with the barrel pointing upwards in a forty-five degree angle.

 As Sledd approached the bedroom doorway, he saw a black man, now identified as Baker, standing in the doorway facing him, wearing a blue jacket, blue jeans, and white tennis shoes. Baker, according to Sledd, was holding his pistol shoulder level pointing up towards the ceiling in a ready position. Their eyes met for a split second, then Baker retreated down the hall towards the stairs. As Baker ran, he yelled "he's got a gun, lets get the f--- out of here." Carrying the ...

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