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FRANE v. KIJOWSKI

January 27, 1998

MICHAEL J. FRANE and DEBORAH M. FRANE, Plaintiffs,
v.
MICHAEL KIJOWSKI; ANTHONY SIMPSON; KEVIN CAHILL; TAMMY KREIBACH; JERALD R. BLECK; and TRI-COM, an intergovernmental agency of the Cities of Batavia, Illinois; St. Charles, Illinois, and Geneva, Illinois, Defendants.



The opinion of the court was delivered by: LEINENWEBER

 Plaintiffs Michael and Deborah Frane (the "Franes") sue three St. Charles police officers, TRI-COM, an intergovernmental agency that operates a 911 emergency telephone system, and two of TRICOM's employees seeking damages under 42 U.S.C. § 1983 for violations of their constitutional rights. Plaintiffs additionally allege common law violations by Officer Michael Kijowski.

 BACKGROUND

 The events giving rise to this suit transpired within a short period of time early on the morning of January 27, 1996. At approximately 1:54 a.m., Danielle Frane, plaintiffs' 17 year-old daughter, made a 911 call that was received by TRI-COM, an intergovernmental agency providing emergency phone dispatch services to the residents of St. Charles, Batavia and Geneva, Illinois. TRI-COM dispatcher Tammy Kreibach ("Kreibach") answered the phone call. Danielle Frane told the dispatcher that her parents had been arguing. She asked for the police to be dispatched to her house because her father was drunk and was beating up her mother.

 After Kreibach dispatched police officers to the Frane residence, she remained on the phone with Danielle Frane. Kreibach reassured Danielle Frane that she was safe, and instructed her to remain where she was -- in an upstairs bedroom at the back of the house -- and not to go down to the first floor where her parents were located. On three occasions, Kreibach asked Danielle Frane if she had any knowledge of whether her father had a weapon in the house and Danielle Frane responded each time that she did not know. During the course of the conversation, Danielle Frane stated that she could not hear very well because the radio was being played in the kitchen. Then, at 1:57 a.m., the following exchange occurred between Danielle Frane and Tammy Kreibach:

 
"Caller: I'm upstairs, I can't really hear anything. (Pause of several seconds). I think he's playing with my dart gun.
 
Dispatcher: What kind of dart gun is this?
 
Caller: It's um, it's just a Wal-Mart-like air pistol.
 
Dispatcher: Okay, like a BB gun, or . . .
 
Caller: Yeah.
 
Dispatcher: Okay."

 Kreibach failed to communicate this information to any of the officers at the scene.

 Meanwhile, a second dispatcher began communicating with the police officers who were dispatched to the scene. Officers Kevin Cahill, Michael Kijowski, and Anthony Simpson arrived at the scene at 1:57 a.m., 1:58 a.m. and 1:59 a.m., respectively. The police officers walked around the outside of the Frane residence surveying the area. When the officers looked through the kitchen window, located at the rear of the house, they observed Michael Frane pointing what appeared to be a gun at the head of his wife, Deborah Frane. Deborah Frane was seated at a kitchen table smoking a cigarette with a cup of coffee in front of her.

 At 2:00:28 a.m., Officer Simpson reported to TRI-COM that the situation involved "a man with a gun." The second dispatcher at TRI-COM acknowledged the information. Approximately six seconds later, Officer Kijowski fired his weapon three times through the closed window. The bullets broke through the kitchen window, striking Michael Frane in the head and hip, injuring him and damaging property within the residence. Prior to shooting, the officers never identified themselves as police, or gave a warning. When the three officers forced open the door to the kitchen, they discovered that the gun Michael Frane was holding was actually a BB gun.

 Plaintiffs have filed a seven-count complaint pursuant to 42 U.S.C. § 1983 and Illinois common law. In Count I, plaintiffs allege that Officer Kijowski deprived Michael Frane of his rights under the Fourth, Fifth and Fourteenth Amendments. In Count III, Michael Frane alleges that Officers Simpson and Cahill violated his constitutional rights by failing to intervene in the shooting. In Count IV, Michael Frane additionally alleges that Tammy Kreibach, her supervisor, Jerald Bleck, and TRI-COM deprived him of his constitutional rights in violation of 42 U.S.C. § 1983. In Count VI, Deborah Frane alleges that Officer Kijowski violated her rights. Finally, in Counts II and VII, plaintiffs bring pendant state law claims for battery and willful and wanton misconduct against Officer Kijowski.

 Defendants Kijowski, Simpson and Cahill move to dismiss portions of the amended complaint and defendants Kreibach, Bleck and TRI-COM move for summary judgment on Counts IV and V of plaintiffs' amended complaint. For the reasons discussed below, the court grants both motions.

 KIJOWSKI, CAHILL AND SIMPSON'S MOTION TO DISMISS

 In ruling on the police officers' motion to dismiss, the court adheres to the familiar standard of viewing the complaint in the light most favorable to plaintiff. Consequently, the court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1995); Codest Engineering v. Hyatt Int'l Corp., 954 F. Supp. 1224, 1996 WL 745120, at *8 (N.D. Ill. 1996). The court will only dismiss a complaint for failure to state a claim if no relief may be granted under any set of facts that could be proven consistent with the allegations found in the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984). While the ...


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