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NEAL v. CITY OF HARVEY

March 30, 1998

EUGENE NEAL, Plaintiff,
v.
CITY OF HARVEY, ILLINOIS; DAVID JOHNSON; et al., Defendants.



The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 The plaintiff, Eugene Neal, brought suit alleging constitutional violations and state law claims arising out of his arrest as a suspect in the shooting of a Harvey police officer. The defendants, the City of Harvey and various Harvey police officers, move for summary judgment on all of Mr. Neal's claims. For the following reasons, the defendants' motion is granted in part and denied in part.

 Background

 On the evening of March, 15, 1995, Officer Jerald Lewis was shot in the back and ear by an assailant he was pursuing on foot. Earlier in the day, Harvey police officers had accompanied a city inspector to the Pro Detail Shop to aid in serving an ordinance violation for operating a business without a license. While at the shop, the police officers encountered two suspended Harvey police officers and Mr. Neal. Mr. Neal is well known to Harvey police. He is a convicted felon who had been previously arrested for the attempted murder of a Harvey police officer. Although there is some disagreement as to who said what, it is undisputed that Mr. Neal's group made threats against the lives of Harvey police officers. Mr. Neal's group also suggested they make a phony call to the police and then ambush the police. These threats were immediately reported to the Harvey Chief of Police, Ronnie Burge, and written reports documenting the threats were produced.

 Later in the evening, Officer Lewis responded to a call reporting a disturbance. Upon arriving at the scene, several subjects fled and Officer Lewis chased one individual. After nearly catching the subject, the individual turned, faced Officer Lewis, and pulled a gun from his waistband. Officer Lewis retreated, but was shot in the back. Officer Lewis rolled over, only to find the individual standing over him. The individual fired another shot at Officer Lewis and then fled. The bullet struck Officer Lewis in the ear. Officer Lewis radioed that he had been shot and drove himself to the hospital.

 That evening, while in the hospital, Officer Lewis described the offender as being a black male, wearing a black and red jacket, approximately six feet tall, and about one hundred and ninety pounds. Officer Lewis was shown a variety of photographs while in the emergency room, but could not identify the shooter. At that time, Mr. Neal's photograph was not among those shown to Officer Lewis. According to the defendants, based on threats to Harvey police officers, the close proximity between the threats and the shooting, and Mr. Neal's criminal history, Mr. Neal became a suspect in the shooting.

 The events of the following morning are disputed. It appears that Chief of Police Burge took a photograph of Mr. Neal to the hospital. At that time, Officer Lewis identified Mr. Neal as his attacker. No other pictures were shown to Officer Lewis. Soon after, and upon the request of Chief of Police Burge, Officer Lawrence Patterson returned to the hospital with a photo array, including a picture of Mr. Neal. Again, Officer Lewis picked out the photograph of Mr. Neal as his assailant. Mr. Neal argues that Officer Patterson did not show Officer Lewis a photo array, but simply another picture of Mr. Neal. Regardless of what occurred, Officer Patterson returned to the police station and informed Chief of Police Burge that Officer Lewis had again identified Mr. Neal as the shooter.

 Chief of Police Burge informed all department chiefs they were to find Mr. Neal and take him into custody as a suspect in the shooting of Officer Lewis. Consequently, Mr. Neal was arrested around noon on March 16, 1995. While in custody, Mr. Neal was searched and a white substance was found on his person. There is a dispute as to how many times Mr. Neal was searched before the substance was discovered and where the substance was actually found. Mr. Neal was booked for attempted murder and possession of a controlled substance.

 As it turns out, Mr. Neal had an iron-clad alibi. At the time of the shooting, he was at the campaign headquarters of Nick Graves, a Harvey mayoral candidate. Additionally, there is evidence that indicates that shortly after Mr. Neal's arrest, Chief of Police Burge was told by a Harvey police officer that a street informant knew that Mr. Neal was not the shooter and named the actual assailant. Mr. Neal, while nearly six feet tall, weighs approximately 135 pounds, a full fifty pounds less than the description provided by Officer Lewis. Still, after Mr. Neal was taken into custody, Office Lewis again identified him in a photo array and a police line-up.

 Mr. Neal was released after a few days in custody. He was never officially charged with the attempted murder of Officer Lewis. The narcotics charge was dropped after it was determined the white substance found on Mr. Neal was not a controlled substance. Based on his arrest and detention, Mr. Neal brought the suit now before me.

 Section 1983 & Qualified Immunity1

 Mr. Neal charges Chief of Police Burge and Officers Lawrence Patterson, Bryan Patterson, and James McGee with violating his Fourth Amendment rights under 42 U.S.C. ยง 1983. *fn2" The defendants argue they are shielded from suit by qualified immunity. Qualified immunity protects government employees from liability "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, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). In the Fourth Amendment context, the issue is whether a reasonable officer could have believed probable cause existed to arrest the plaintiff given the specific circumstances with which the defendants were confronted. Anderson v. Creighton, 483 U.S. 635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1986). The Supreme Court has noted that qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law...[and] if officers of reasonable competence could disagree on [the probable cause] issue, immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1985). Thus, the Supreme Court has found that "even law enforcement officials who 'reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." Hunter v. Bryant, 502 U.S. 224, 227, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991)(quoting Anderson, 483 U.S. at 641).

 "Probable cause for an arrest exists if, at the moment the arrest was made, the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that an offense has been committed." Hughes v. Meyer, 880 F.2d 967, 969 (7th Cir. 1989). As the Seventh Circuit has noted, "probable cause requires more than bare suspicion, but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false." Id. "Probable cause depends not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the position of the arresting officer --seeing what he saw, hearing what he heard." Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992)(emphasis in original).

 A. Attempted Murder

 At the time of Mr. Neal's arrest for the attempted murder of Officer Lewis, the Harvey police had sufficient evidence to find probable cause. Hours before the shooting of Officer Lewis, Mr. Neal was part of a group of men that threatened to ambush and shoot a Harvey police officer. Mr. Neal was a known felon who had been previously arrested for the attempted murder of a Harvey police officer. After the shooting, Officer Lewis twice identified pictures of Mr. Neal as his assailant. See Jones v. City of Chicago, 856 F.2d 985, 995 ...


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