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ESTATE OF CHLOPEK v. JARMUSZ

February 27, 1995

ESTATE OF JOSEPH CHLOPEK, deceased, by DEBRA FAHRFORTH, as Special Administrator and Individually, and DAVID CHLOPEK, Plaintiffs,
v.
DAVID JARMUSZ, and THE CITY OF CHICAGO, a Municipal Corporation, Defendants.



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

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the Defendant's motion for summary judgment. For the following reasons, the motion is granted.

 FACTS1

 On June 6, 1992, Defendant Officer David Jarmusz ("Jarmusz") shot and killed Joseph Chlopek ("Chlopek"). Plaintiffs brought this action alleging violations of 42 U.S.C. §§ 1983, 1985, 1988, and various state law claims. In November 1993, the court dismissed a number of the named defendants and all references to § 1985 claims. Two defendants remain in the case: Jarmusz and the City of Chicago.

 A brief background of this contemporary tragedy is appropriate. As of the date of the shooting, Jarmusz had been an officer with the Chicago Police Department for approximately nineteen years. He was a member of the Special Operations Group of the Chicago police Department from 1976 to 1981. In 1981, Jarmusz was promoted to the rank of Gang Specialist. On June 6, 1992, he was serving with the Gang Crimes South Unit. He was trained as a marksman and is tested yearly.

 At 3:00 p.m. on June 6, 1992, Jarmusz and Officer John Hennis ("Hennis") were looking for Adolph Garza, Jr. ("Garza"). The state court had issued a warrant commanding the arrest of Garza. Hennis and Jarmusz drove, in an unmarked squad car, to the Davis Elementary school located at 3014 West 39th Place in an effort to execute the warrant. Upon their arrival, the officers saw a group of youths in the schoolyard who, from their clothing of black shirts and brown or tan pants, appeared to be members of the 2-6 Gang. The officers did not see Garza among the group on their first drive past the schoolyard. Jarmusz and Hennis drove past the schoolyard a total of four times.

 Although Jarmusz and Hennis did not see Garza, they did take special note of a person later identified as Chlopek. At that time, Chlopek was twelve years old, at a height of five feet, five inches, and a weight of approximately one hundred nine pounds. Moreover, he wore a black shirt and maroon trousers that day.

 Each time the officers drove past the school, they noticed that Chlopek would turn, grab his midriff with his right hand, *fn2" and walk away from the group. After the second pass, the officers stopped and interviewed a girl they knew to be Garza's sister. After the third pass, the officers drove into an alley to surreptitiously observe the group. From that position, they watched Chlopek return to the group as the group members began looking around. The officers then passed a fourth time and observed Chlopek walk away from the group yet again.

 After the fourth passing, the officers decided to investigate more thoroughly. They drove to the east side of the school which was out of the group's direct line of sight. Jarmusz got out of the car and positioned himself to view the group in the schoolyard. Jarmusz was not wearing his jacket at this time, leaving his gun and handcuffs exposed. After dropping off Jarmusz, Hennis continued to drive past on the south side of the schoolyard. From Jarmusz's vantage point he could not see the entire group, but he could see that members of the group were facing south and pointing in the direction where Hennis logically would have been.

 As Hennis was driving past and Jarmusz began walking towards the group, Chlopek ran north and west from the group to an opening in the schoolyard fence. The group remained in the schoolyard. Jarmusz testified that Chlopek was approximately seventy-five yards away from him as he exited the school grounds. Jarmusz testified that Chlopek pulled a gun from his midriff area with his right hand as he crossed 39th Street. Jarmusz chased Chlopek north into an alley leading from 39th Street to 38th Place. Jarmusz's gun was drawn. During the chase, Jarmusz yelled "Police," "Halt," and "Stop." Chlopek did not comply with the orders nor did he verbally respond, but instead looked back at Jarmusz two or three times. After Chlopek looked back a second time, Jarmusz fired a round into the air as a warning. Chlopek, still running, then exited the alley onto 38th Place.

 Meanwhile, once he saw Chlopek leave the schoolyard, Hennis drove north past the school, then east on 38th Street in an effort to intercept Chlopek. However, after Chlopek exited the first alley, he crossed 38th Place and continued north into a second alley. Hennis followed behind Chlopek. After Jarmusz exited the first alley, he watched Hennis follow Chlopek and noticed Chlopek run east into an alley which branched off in the middle of the second alley. Jarmusz decided to run east along 38th Place. While running, Jarmusz looked north between the houses in attempt to see where Chlopek was running.

 Moments later, Jarmusz saw Chlopek standing in a backyard, facing east, looking over a four foot fence into the alley. Jarmusz heard the unmarked squad car in the alley; Chlopek was looking where Hennis logically would have been. Jarmusz shouted warnings at Chlopek again and moved towards him. Jarmusz stopped approximately seventy-five feet from Chlopek. Jarmusz testified that Chlopek raised a gun and pointed it at him. Jarmusz believed that he would be shot. Jarmusz testified that he yelled at Chlopek to drop the gun, but that Chlopek did not. Jarmusz fired four rounds. He did not see Chlopek react to the bullets, so Jarmusz thought the bullets had missed him. In fact, Chlopek was hit with three bullets, one in his right ankle, one through his right arm which re-entered his chest, and one through his lateral right buttock. After the rounds were fired, Chlopek climbed the fence. Jarmusz watched as Chlopek began to cross the backyard, then yelled at him to stop and lie down. Chlopek looked at Jarmusz, then collapsed backwards and died.

 DISCUSSION

 Federal Rule of Civil Procedure 56(c) provides that a summary judgment "shall be rendered forthwith 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); Salima v. Scherwood South, Inc., 38 F.3d 929, 931 (7th Cir. 1994); Transportation Communications Int'l Union v. CSX Transp., Inc., 30 F.3d 903, 904 (7th Cir. 1994). Summary judgment is not a discretionary remedy and must be granted when the movant is entitled to it as a matter of law. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Associated Milk Producers, Inc. v. Meadow Gold Dairies, 27 F.3d 268, 270 (7th Cir. 1994), presenting only a scintilla of evidence will not suffice to oppose a motion for summary judgment, Walker v. Shansky, 28 F.3d 666, 671 (7th Cir. 1994). Nor will some metaphysical doubt as to the material facts suffice. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Moreover, the disputed facts must be those that might affect the outcome of the suit to properly preclude summary judgment. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). A dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, the non-moving party is required to go beyond the pleadings with affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). In the case at bar, the court finds that there are no genuine issues as to any material facts; hence, a summary judgment properly may be issued.

 The central dispute between the parties is whether Chlopek possessed a gun that day. For if he did have a gun, the court could find that Jarmusz's act of shooting was a justified response of self-defense; thus, he would be immune from liability. If Chlopek did not have a gun, the court could find that the shooting was unjustified. Plaintiffs' contention is that Chlopek did not have a gun at all, and that some other person (implicitly officer Jarmusz) placed the gun in question at the scene. *fn3" Plaintiffs support their theory with a number of arguments. First, they argue the contention that Chlopek held the weapon with his right hand is wholly inconsistent with the actual fact that Chlopek was left handed. Second, they argue that the gun in question is not the same gun Jarmusz described as "shiny" in the Police Report. From this Plaintiffs conclude that his entire story is fabricated. Third, Plaintiffs argue that the Chicago Police had the last-known possession of the gun, which they imply supports their theory that Chlopek never had the gun and that another person dropped the gun at the scene. Fourth, the Medical Examiner's report describes that one bullet entered the side of Chlopek's arm, and not the front of his arm. Plaintiffs argue that he could not have been pointing a gun at Jarmusz at the time of the shooting. Fifth, the investigators were not able to lift Chlopek's fingerprints from the gun. Plaintiffs argue that this is inconsistent with Jarmusz's testimony that Chlopek held the gun in his bare right hand. Sixth, Plaintiffs argue in the alternative that even if Chlopek had carried a gun, his actions were consistent with self-defense. They speculate that Chlopek might not have recognized Jarmusz as a real police officer because Jarmusz was plain clothed, rode in an unmarked squad car, and did not present a badge during the chase. Seventh, procedurally, Plaintiffs contend that Jarmusz's statements concerning the events may not be used to support state law claims due to Illinois' Dead-Man's Act, 735 ILCS 5/8-201.

 The court recognizes that in this summary judgment motion Plaintiffs' arguments may not be considered unless they were properly supported with evidentiary material. The court will accept only those factual statements that are well pled and are in compliance with Local Rules 12(M)(3), 12(N)(3)(a), and 12(N)(3)(b). Any statements not in compliance are not considered. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) ("district courts are not obliged . . . to scour the record looking for factual disputes"). Facts which the litigants properly assert in the 12(M)(3) and 12(N)(3)(b) statements are deemed admitted, unless the responding party contradicts them in the manner specified under the Local Rules. Knox v. McGinnis, 998 F.2d 1405, 1408 n.8 (7th Cir. 1993); see also Early v. Bankers Life & Casualty Co., 853 F. Supp. 1074, 1079 (N.D. Ill. 1994) (holding that failure to comply with Local Rule 12(n) results in the admission of material facts). Moreover, a mere disagreement with the movant's asserted facts is inadequate if made ...


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