The defendants have raised the defense of qualified immunity.
Government officials such as the Decatur police officers in
this case, "are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). "The issue of
qualified immunity is a legal question for the trial court, not
the jury." Maltby v. Winston, 36 F.3d 548, 554 (7th Cir. 1994)
cert. denied, ___ U.S. ___, 115 S.Ct. 2576, 132 L.Ed.2d 827
(1995). "It is the plaintiff who bears the burden of
establishing the existence of the allegedly clearly established
constitutional right." Rice v. Burks, 999 F.2d 1172, 1174 (7th
Cir. 1993). Plaintiffs can satisfy that burden in either of two
ways: (1) pointing to a closely analogous case that established
a right to be free from the type of force the police officers
used, or (2) showing that the force was so plainly excessive
that, as an objective matter, the police officers would have
been on notice that they were violating the Fourth Amendment.
Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996).
The unique circumstances in this case clearly do not fit a
pattern laid out in a closely analogous case. Both parties
agree that the A.E. Staley demonstration and the police
spraying of pepper gas, is a unique factual situation that has
not been specifically ruled on in the Seventh Circuit or any
other federal circuit. But the plaintiffs argue that they carry
their burden, and avoid qualified immunity, by showing that the
force was plainly excessive so that police officers should have
known they were violating the Fourth Amendment. The plaintiffs
rely on the uniqueness of their factual situation in that the
allegedly excessive use of force was not against a fleeing
criminal or an inmate, but instead was against a group of
peaceful demonstrators exercising their First Amendment rights
to speech and assembly.
"Although the qualified immunity determination is a legal
question it is not answered in the abstract but in reference to
the particular facts of the case." Maltby, 36 F.3d at 554
(quoting Rakovich v. Wade, 850 F.2d 1180, 1202 (7th Cir.) cert.
denied 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988)).
The particular facts of this case, that make qualified immunity
inappropriate, are as follows. The class plaintiffs had met
with the Decatur prior to their demonstration, and had
discussed the upcoming demonstration. The class plaintiffs had
gathered to exercise their rights of speech and association
under the First Amendment. The police sprayed pepper spray into
the crowd of demonstrators on two separate occasions. The
spraying was in response to some type of surge against the
The Decatur police do not qualify for immunity. Although
there are no cases specifically stating that pepper spraying
demonstrators violates the Fourth Amendment, there is enough of
a widespread Constitutional and judicial protection of First
Amendment demonstrators to put the police on notice that
unnecessary force is prohibited. The demonstration outside A.E.
Staley's was "an aspect of a basic constitutional right under
the First and Fourteenth Amendments guaranteeing freedom of
speech and of assembly." Brown v. Louisiana, 383 U.S. 131, 141,
86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1966). Furthermore, the
alleged excitability of the crowd of Staley demonstrators does
not in any way undermine their First Amendment status. "A
function of free speech under our system of government is to
invite dispute. It may indeed best serve its high purpose when
it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. Speech
is often provocative and challenging." Edwards v. South
Carolina, 372 U.S. 229, 237, 83 S.Ct. 680, 684, 9 L.Ed.2d 697
The fact that this is a Fourth Amendment case and not a First
Amendment case does not diminish the First Amendment
protections available to the plaintiffs. What value would the
First Amendment carry if its demonstrators could be dispersed
or intimidated by police brutality or unnecessary force?
Qualified immunity is not widely available in an "area so
closely touching our most precious freedoms." Edenfield v.
Fane, 507 U.S. 761, 777, 113 S.Ct. 1792, 1804, 123
L.Ed.2d 543 (1993) (quoting NAACP v. Button, 371 U.S. 415, 435,
83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963)).
The defendants argue that the grant of qualified immunity in
Kernats v. O'Sullivan controls the instant case. 35 F.3d 1171
(7th Cir. 1994). However, Kernats is inapposite. Kernats dealt
with police improperly coercing an eviction from rental
property. A local police officer with no actual eviction
jurisdiction threatened the Kernats plaintiffs in a "Wyatt
Earp-like fashion," telling them to leave by sundown or the
whole family would be arrested. 35 F.3d at 1174. The court sees
no similarities between the Kernats housing eviction and the
instant labor demonstration. Kernats did not involve First
Amendment protestors, nor did it involve the use of pepper
spray or chemical spray.
Since the Decatur police officer defendants are not entitled
to qualified immunity, the next issue is whether they are
entitled to summary judgment on the issue of excessive force.
They are only entitled to such summary judgment if no possible
interpretation of the facts could support a finding of
excessive force. The basic claim in this case is that the
police officer defendants used excessive force against the
class plaintiff demonstrators by spraying pepper spray into the
crowd. The Supreme Court has held "that all claims that law
enforcement officers have used excessive force — deadly or not
— in the course of an arrest, investigatory stop, or other
seizure of a free citizen should be analyzed under the Fourth
Amendment and its reasonableness standard." Graham v. Connor,
490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443
(1989). "Claims of excessive force in the case of a seizure are
analyzed under the objectively reasonable standard of the
Fourth Amendment." Soller v. Moore, 84 F.3d 964, 968 (7th Cir.
1996) (citing Connor, 490 U.S. at 396, 109 S.Ct. at 1872).
"Determining whether the amount of force used to effectuate
a particular seizure is reasonable under the Fourth Amendment
requires a careful balancing of "the nature and quality of the
intrusion on the individual's Fourth Amendment interests
against the countervailing governmental interests." Graham v.
Connor, 490 U.S. at 396, 109 S.Ct. at 1871. Courts struggling
with this issue are to pay "careful attention to the facts and
circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he
is actively resisting arrest." Id. at 396, 109 S.Ct. at 1872.
In the instant case the Connor factors help the plaintiffs.
The severity of the crime at issue is negligible, being at most
trespass. The plaintiffs did not pose an immediate threat to
the safety of the officers or others. They were unarmed
protestors exercising their First Amendment rights. Under any
version of the facts the demonstrators were not actively
resisting arrest; they were marching, chanting and protesting.
The police arrested only one demonstrator, and that was after
he had been sprayed with pepper spray. The Connor factors
highlight the uniqueness of the factual context of the instant
case. This is not a typical excessive force case where the
police were struggling with a fleeing felon or a rebellious
prisoner. Instead, the police were monitoring a peaceful,
lawful and constitutionally protected demonstration.
The case law on police use of pepper spray is limited. There
are several Seventh Circuit cases involving the use of mace, a
more harmful chemical spray. But the mace cases are factually
dissimilar in that they involve the use of a chemical spray in
a prison context. See e.g., Soto v. Dickey, 744 F.2d 1260 (7th
Cir. 1984) cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85
L.Ed.2d 144 (1985); Stringer v. Rowe, 616 F.2d 993 (7th Cir.
1980). Mace has also been used in controlling arrestees. See
e.g., United States v. Benjamin, 995 F.2d 756 (7th Cir. 1993).
But the Seventh Circuit has never addressed the use of pepper
spray in a First Amendment demonstration context.
A persuasive opinion from another district court in this
circuit held that the use of chemical spray to subdue an unruly
trespasser did possibly constitute excessive force for
the purpose of a Fourth Amendment seizure. Estate of Bryant v.
Buchanan, 883 F. Supp. 1222 (S.D.Ind. 1995). In Bryant, the
court denied summary judgment in part because of the Connor
factors. "Significantly, Bryant's alleged misconduct was
neither violent nor serious. There is evidence to suggest that
Bryant did not pose a physical threat to either the Indiana
Police Department officers, . . . or that his behavior
constituted anything more serious than disorderly conduct."
Bryant, 883 F. Supp. at 1225.
The Sixth Circuit has held that an officer who sprayed mace
on an individual suspected of violating the state's seat belt
law used enough force to preclude summary judgment on the issue
of excessive force. Adams v. Metiva, 31 F.3d 375 (6th Cir.
1994). The Adams court emphasized the need for a jury
determination as to whether spraying mace at the plaintiff was
objectively reasonable under Graham v. Connor. See, Adams, 31
F.3d at 385-86. Like the plaintiff in Adams, the class
plaintiffs in the instant case were involved in only negligibly
criminal activity, but were subject to a chemical spray that
"blinded and incapacitated" them. 31 F.3d at 387.
The court is not prepared to say either that the force used
by the police officers in using pepper spray on the
plaintiffs/demonstrators was excessive or was not excessive.
Instead the court feels that in these unique, hitherto untested
circumstances, involving not only Fourth Amendment concerns,
but also strong First Amendment concerns, a fact finder must
decide the what happened on June 25, 1994, and whether the
force used by the defendants was reasonable under all of the
circumstances. "The trier of fact must look to whether the
officers' actions were objectively reasonable in light of the
facts and circumstances confronting him." Soller v. Moore,
84 F.3d 964, 968 (7th Cir. 1996).
There are a number of factual uncertainties that preclude
summary judgment on the issue of excessive force. How rowdy was
the crowd of over 2,000 demonstrators? Apparently multiple
video tapes of the demonstration exist, some taken by law
enforcement personnel and others taken by demonstrators.
Interpreting the facts through this filmed evidence is a job
for a finder of fact. How severe was the force of the spray?
Where were the police standing when they sprayed? Where were
they aiming the spray?
In Count II of their complaint the plaintiffs allege that the
defendants conspired to violate the plaintiffs' constitutional
rights, specifically their Fourth Amendment right to be free
from seizure by excessive force. "Whether a complaint properly
alleges a conspiracy depends on whether the alleged facts
support an agreement between the defendants." Kunik v. Racine
County, 946 F.2d 1574, 1580 (7th Cir. 1991). "A civil
conspiracy is a combination of two or more persons acting in
concert to commit an unlawful act, or to commit a lawful act by
unlawful means, the principal element of which is agreement
between the parties." Kunik, 946 F.2d at 1580 (quoting Hampton
v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979) rev'd in part
on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670
The defendants' summary judgment motion argues that because
there was no possible violation of constitutional rights,
therefore there can be no civil conspiracy. As the court has
outlined above, the complaint does allege a possible violation
of the plaintiffs' constitutional rights and so therefore if
the complaint also alleges a possible agreement between the
defendants, it will withstand summary judgment.
A civil conspiracy requires an agreement, but "the agreement
need not be overt." Kunik, 946 F.2d at 1580. If not overt, the
acts alleged "must be sufficient to raise the inference of
mutual understanding." Id. In the instant case the class
plaintiffs have alleged acts sufficient to raise an inference
of mutual understanding. The alleged acts are the planning
meetings of the police team that was to handle the A.E. Staley
demonstration. Defendant Ryan was the commander of this team
and he met with defendant Chervinko and the other police
members of the team several times before the actual June 25,
1994 demonstration. At this stage, the court construes the
allegations of the complaint in the light most favorable to the
plaintiffs. It may well be that at a later stage a fact finder
will find the planning meetings do not support a conspiracy.
The court concludes that the complaint alleges facts that
could support a finding of excessive force that constitutes a
seizure under the Fourth Amendment. The court also rules as a
matter of law that the defendants are not entitled to qualified
immunity. The court finds the Sixth Circuit's reasoning in
Adams v. Metiva persuasive. Adams is instructive because the
court reversed the lower court's grant of summary judgment to
the police officer who sprayed mace on the plaintiff on two
grounds. The court held that it was possible that macing the
plaintiff constituted a seizure marked by excessive force, and
the court also held that the officer who maced the plaintiff
was not entitled to qualified immunity. 31 F.3d at 384-87.
IT IS THEREFORE ORDERED THAT the defendants' Motion for
Summary Judgment (docket #28) is denied.
IT IS FURTHER ORDERED THAT as a matter of law defendants are
not entitled to qualified immunity.
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