The opinion of the court was delivered by: RUBEN CASTILLO
During the evening hours of February 20, 1992, the plaintiffs, Willard Huffman ("Huffman") and Helen Huffman, were at their home at 28621 Edgewood, in Cary, Lake County, Illinois. At approximately 7:50 p.m., defendant Nikolai Baibus ("Baibus"), on duty as a sergeant of police for the Village of Fox River Valley Gardens, stopped a vehicle driven by David Schultz ("Schultz") for speeding. Schultz told Baibus that he was upset and in a hurry to get out of the area because a man had just pointed a gun to his face. Baibus issued Schultz a speeding pointed a gun to his face. Baibus issued Schultz a speeding ticket. Schultz explained to Baibus that he worked for Chrysler Credit Corporation and that he had gone to the Huffman residence to question them about payments on a vehicle. While there, an older man opened the door and pointed a gun at Schultz's head. Schultz also stated that he believed the older man had been drinking. Baibus asked Schultz if he wanted to pursue the matter and Schultz said that he did. Schultz agreed to sign a complaint about the incident. Baibus radioed defendant Ron Chan ("Chan") of the Village of Tower Lakes Police Department. When Chan arrived, Baibus informed Chan of Schultz's story.
Schultz then led Baibus and Chan to the area of the Huffman residence. They stopped around the corner from Huffman's home. Baibus called his dispatcher and asked it to send a unit from the police department with jurisdiction of the Huffman residence. At approximately 8:20 p.m., the dispatcher ordered defendants George Manis ("Manis") and Darrell Lewallan ("Lewallan"), both uniformed Lake County Sheriff's Deputies, to respond to Baibus' location near the Huffman residence.
When Manis and Lewallan arrived at the location near the Huffman residence, Schultz told them that as an employee of Chrysler Credit Corporation, he had gone to the Huffman residence to inquire about the lack of payments on a vehicle. When Schultz arrived at the house, he saw no lights on in the front, but saw lights on at the back door. Schultz then knocked on the back door and an elderly male with grey hair and a white t-shirt opened the door and pointed a gun at him. Manis and Lewallan stated that they considered that probable cause existed to believe that Huffman had committed the offense of aggravated assault.
Manis, Lewallan, Chan, and Baibus, all in uniform, went to the Huffman residence to question Huffman about the incident with Schultz. Schultz pointed out the house to the officers but stayed behind. Chan went to the back of the house. Manis, Lewallan and Baibus went to the window at the side of the house which looked into the living room. Through the window, they observed an older man with grey hair wearing a white t-shirt sitting on the couch. Helen Huffman was also in the living room in a chair. Manis went around to the front and knocked on the front door. Lewallan and Baibus stayed on the side of the house at the window. They observed that after Helen Huffman heard the knock, she went toward the door. Lewallan also observed Mr. Huffman go into the bedroom. Through the window, Lewallan and Baibus both observed Mr. Huffman in the living room area holding a small caliber semi-automatic pistol in his hand and sliding the chamber back as if to put a round into the chamber. Lewallan radioed to Manis at the front door saying, "He's got a gun." Lewallan and Baibus observed Mr. Huffman sit down on the couch with the gun.
Baibus and Lewallan then joined Manis at the front door. Manis knocked on the door a second time. Helen Huffman looked through a window by the front door, saw nothing, and then unlocked the front door. The officers never announced themselves as the police. Manis, followed by Lewallan and Baibus, entered the Huffman home. Manis retrieved the pistol from the couch.
When Lewallan saw Huffman with a gun, he felt there was a sense of urgency. Baibus was scared when he saw Huffman with the gun in his hand and drew his own weapon from its holster.
Huffman was arrested, handcuffed and charged with aggravated assault. When Huffman was removed from the house, he was identified by Schultz as the same man who had pointed a gun at Schultz earlier that evening.
Plaintiffs filed a three count complaint on February 22, 1993. Count I is an action against defendants Lewallan, Manis, Baibus, Chan, the Lake County Sheriff's Office, Tower Lake Police Department, and Fox Valley River Gardens' Police Department for the use of excessive force against plaintiffs in violation of their rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. §§ 1983 and 1988. Count II is an action against defendants for illegal search, seizure and arrest in violation of plaintiffs' rights under the Fourth and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. §§ 1983 and 1988. Count III is an action against defendants for assault and battery under state law.
All defendants filed a combined motion for partial Summary Judgment pursuant to Fed. R. Civ. Proc. 56(b). Defendants principally request Summary Judgment on Count II (plaintiffs' allegations of illegal search, seizure and arrest), claiming that defendants are entitled to qualified immunity.
Defendants also request that Summary Judgment be entered against Helen Huffinan as a party Plaintiff in this case and in favor of Defendant Chan in all allegations of Plaintiffs' complaint.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions of 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 judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1985). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact." Id. at 248.
A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 255. The court must view all evidence in a light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 98 L. Ed. 2d 486, 108 S. Ct. 488 (1987), and draw all inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990). However, if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50; ...