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January 23, 1996

FELECIA IRVIN, as the Mother and Next Friend of GEOFFREY MITCHELL, a Minor, and LUCIE WADE, as the Grandmother and Next Friend of CALVIN WADE, a Minor, Plaintiffs,

The opinion of the court was delivered by: CASTILLO

 This civil rights action is brought pursuant to 42 U.S.C. § 1981 (Count I), 42 U.S.C. § 1983 (Counts II and III), and the Illinois common law of false imprisonment (Count IV). Plaintiffs' minors (hereafter "plaintiffs") Geoffrey Mitchell and Calvin Wade allege that the individual defendants, Edmond Kaczmaryn, John Van Dien, and Michael Murphy, improperly detained them, and that Kaczmaryn used excessive force in searching them, which Van Dien failed to prevent. The plaintiffs also claim that this treatment was racially discriminatory. The only claim against the City of North Chicago is the state law claim; the City is not a defendant in the federal civil rights claims.

 All defendants *fn1" have moved for summary judgment. Their argument focuses on the Fourth Amendment violations alleged in Count II, *fn2" contending that either there was no seizure, or the necessary level of suspicion (either reasonable suspicion or probable cause) existed and justified any seizure of the plaintiffs that occurred. Any such seizure, they contend, was also reasonable in scope, duration and force as a matter of law. The defendants also argue that, as their actions were justified by probable cause, they should also receive judgment in their favor on the state law false imprisonment claim in Count IV. Finally, they argue that they are entitled to qualified immunity (under federal law for the individual defendants and under state law for the City). All parties have submitted memoranda of law and statements of facts supported by affidavits. *fn3"

 As a preliminary matter, we note that the defendants have filed a motion to strike one of the affidavits submitted by the plaintiffs, an affidavit by Elisha Mitchell. The problem is that Elisha Mitchell is inextricably linked to both parties: he is both the Assistant Chief of Police for the City of North Chicago, and the stepfather of Geoffrey Mitchell, one of the plaintiffs' minors. Defendants' main argument is that the affidavit should be stricken on the grounds that contact between the plaintiffs' attorney and a City employee is unethical under Rule 4.3 of the Rules of Professional Conduct for the United States District Court for the Northern District of Illinois. The defendants also note the irrelevance of most of the affidavit to the issues presented by their motion for summary judgment.


 The following factual account is taken from the parties' Rule 12(M) and 12(N) statements, and consists primarily of uncontested facts. Contested material facts are identified as such. This order will serve as an order pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, finding that the uncontested facts "exist without substantial controversy," and are therefore not subject to dispute. FED. R. CIV. P. 56(d).

 Plaintiffs Calvin Wade and Geoffrey Mitchell are thirteen and fourteen years old, respectively. Jamal Mitchell is Geoffrey's brother. All three boys are African American. The individual defendants, Edmond Kaczmaryn, John Van Dien, and Michael Murphy, are current or former police officers for the City of North Chicago, Illinois. All three officers are caucasian.

 At approximately 3:00 p.m. on September 28, 1993, Calvin, Geoffrey and Jamal were walking home from school through a parking lot used by the North Chicago police department, near the North Chicago municipal building. Plaintiffs Geoffrey and Calvin were walking ahead of Jamal. Jamal noticed a car with its door ajar and, without saying anything to Geoffrey and Calvin, walked over to the car and entered the car. Jamal took a pack of chewing gum from the seat of the car and exited the car. Ralph Peterson, an automobile maintenance man for the City, saw Jamal enter the car, called out for Jamal to stop. Peterson was then approached by police officer Michael Murphy, who was in the parking lot.

 The exact phrasing of Peterson's words to Murphy are in dispute. Peterson testified in deposition that he told Murphy only that one boy, Jamal, had gone into the car. Murphy has filed affidavits recalling that Peterson told him that "these kids were inside Lieutenant Kaczmaryn's car," or words to that effect. *fn4"

 Murphy told the boys to accompany him into the police station, saying, "come on, let's go." The three boys complied with Murphy's summons. Peterson had not noticed Geoffrey and Calvin until then. As they were headed into the station, Geoffrey asked why Calvin and he had to go into the police station, as they had not done anything. Peterson replied (in Murphy's presence), "I didn't say you guys went in the car. I said this young man [indicating Jamal] went in the car."

 Murphy entered the police station with the three boys and turned them over to Kaczmaryn, telling him that "these kids were inside your car," or words to that effect. Murphy then left. The boys were seated in an area near the front of the station. Peterson entered the station about two minutes later and identified Jamal to Kaczmaryn, telling Kaczmaryn that Jamal was inside Kaczmaryn's car and had taken a pack of gum. Peterson cannot recall whether he then handed the pack of gum to Kaczmaryn. Peterson did not state that Geoffrey or Calvin had done anything wrong. *fn5" Peterson then left.

 At some point during this time, defendant Van Dien entered the area where the boys were seated, and Kaczmaryn instructed him to begin photographing and fingerprinting the boys. Meanwhile, Kaczmaryn conducted a pat-down search of each boy individually, having each one stand and face the wall with hands on the wall, and then kicking his feet apart until he was in a spread stance. After this process had been completed, and the boys were turned over to the juvenile officer, Olander Warner. Warner asked the boys to follow him back into the detective bureau, where he interviewed them for approximately one hour and then released them. The last boy to be released reached home no later than approximately 5:00 p.m. *fn6"

 There are, of course, additional contested facts. The plaintiffs contend that Van Dien had entered the area where Kaczmaryn was standing and the boys were sitting in time to witness Peterson's identification of Jamal as the sole boy who had entered Kaczmaryn's car. The parties also dispute whether Peterson told the police inside the station that the other boys were "with" Jamal.

 The plaintiffs aver, via their affidavits, that Kaczmaryn stated that he was "so mad that he wanted to kill them," at the time that he asked Van Dien to photograph and fingerprint the boys and write up a report. Geoffrey and Calvin also state that as Kaczmaryn searched them he used excessive force, kicking their feet apart with such force that Calvin asked him to stop and complained that he was going to fall, and Geoffrey sustained bruises severe enough to keep him out of football practice. Geoffrey also avers that Kaczmaryn deliberately squeezed his eyeglasses in the breast pocket of his coat during the patdown and crushed them, despite Geoffrey's request that Kaczmaryn be careful of the glasses. Throughout the search, plaintiffs aver that Kaczmaryn was shouting and abusive, calling them niggers and black fuckers, and saying that they had better get used to this because they would be doing it for the rest of their lives. Plaintiffs state that Van Dien was in the same area, watching and ...

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