The opinion of the court was delivered by: Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Both sides have complied with this District Court's General Rule ("GR")
12(M) and 12(N),*fn2 and the motion is fully briefed and ripe for
decision. For the reasons set forth in this memorandum opinion and
order, defendants' motion is granted in one respect but is denied in
principal part. Summary Judgment Principles
Under familiar Rule 56 principles defendants have the burden of
establishing both the lack of a genuine issue of material fact and that
they are entitled to a judgment as a matter of law (Celotex v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Summary
judgment is appropriate only if the record reveals that no reasonable
jury could conclude that defendants violated Regalado's constitutional
and state law rights. For that purpose this Court must "read the record
in the light most favorable to the non-moving party," although it "is not
required to draw unreasonable inferences from the evidence" (St. Louis
N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th
What follows in the Facts section (and to some extent later) is culled
from the parties' submissions, with any differences between them resolved
in Regalado's favor*fn3 Other relevant facts, which fit somewhat better
into the substantive legal discussion, will be set out later in this
On June 20, 1991 Regalado, for whom there was an outstanding arrest
warrant, encountered Officers Garcia and Acevedo and began to run from
them (R.Mem. 1). Garcia chased Regalado dorm the street and out of the
sight of any witnesses (R. 12(N) ¶ 5). They were thus totally out
of' sight for somewhere between 3 and 10 minutes (id. ¶ 7), but
several witnesses viewed other portions of their altercation.
Passerby Richard Torres saw Regalado running from Garcia. Then he saw
Garcia swing a dark object in a downward motion at Regalado's head and
back. Regalado staggered and fell, and Garcia continued to hit him. Then
Garcia put his knee in Regalado's upper back and neck area, picked up his
head and hit him with an open palm to the face (id. ¶ 15). Another
witness, Regalado's friend Frank Mondragon, saw Garcia push Regalado
against a building and then strike him several times with a flashlight
(id. ¶ 23). Regalado collapsed, but Garcia picked him up and again
hit him on the head with the flashlight. When Regalado fell to the ground
after that blow, he did not get up or move again (id. ¶ 24).
Instead of calling an ambulance, or indeed even taking Regalado to the
station house, Officers left him with his friends (id. ¶¶ 37-39).
Regalado's friends carried him to the Mondragon house, and eventually
everyone passed out or went to sleep (id. ¶¶ 41-42). When Ignacio
Mondragon came home from his graveyard shift in the morning, everyone
realized that something was seriously wrong with Regalado. He still could
not be awakened, and spit and blood were coming from his nose and mouth
(id. ¶ 43). His friends then called an ambulance and Regalado was
taken to the hospital (id. ¶ 44).
According to Regalado's expert witness Dr. Robert Ehle, Regalado
suffered a stroke caused by trauma to one or both of Regalado's vertebral
arteries (id. ¶¶ 54-56). Regalado presently has a "locked in"
syndrome: He has no control over his body (i.e., his arms, legs, tongue
or vocal cords), but he is conscious and aware of his surroundings and is
able to move his eyes up or down (id. ¶ 70).
Regalado's Claims Against Acevedo
Regalado brought a Section 1983 excessive force claim (Count I)*fn4
and a state assault and battery claim (Count II) against Acevedo, both
based on his asserted failure to prevent Garcia from using excessive
force. Acevedo moves for summary judgment on both claims.
Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) is the seminal decision
establishing a plaintiffs ability to bring a Section 1983 claim based on
an officer's failure to intervene in another officer's use of excessive
force. Such claims are now often referred to as "Byrd claims." Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (emphasis in original) has
further explained the requirements of Byrd claims:
An officer who is present and fails to
intervene to prevent other law enforcement
officers from infringing the constitutional
rights of citizens is liable under
§ 1983 if that officer had reason to
know: (1) that excessive force was being
used, (2) that a citizen has been unjustifiably
arrested, or (3) that any constitutional
violation has been committed by a
law enforcement official; and the officer
had a realistic opportunity to intervene
to prevent the harm from occurring.
To succeed on the current motion, then, Regalado must at least create
reasonable inferences*fn5 that Acevedo (1) had reason to know Garcia was
using excessive force and (2) had a realistic opportunity to intervene to
prevent the consequent harm from occurring.
D.Mem. 3 a. 1 accepts as true, for purposes of this motion, Regalado's
claim that Garcia did employ excessive force against him. But because it
is undisputed that at least for some period of time Acevedo was not
present during the altercation between Garcia and Regalado, what is at
issue is whether Acevedo arrived in time to see and to prevent Garcia's
use of that excessive force.
As already stated, other witnesses testified that at some point Garcia
struck Regalado with a flashlight several times, causing him to fall to
the ground, unable to move or stand up again (R. 12(N) ¶¶ 15,
23-24). When combined with Mondragon's testimony that Regalado was
standing when he and Acevedo arrived on the scene, a jury could also
reasonably infer that Acevedo witnessed and had an opportunity to prevent
the blows that forced Regalado to the ground.
Yang, 37 F.3d at 285 has made clear that a realistic opportunity to
intervene need not involve any extended time frame:
At a minimum Officer Hardin could have
called for a backup, called for help, or at
least cautioned Officer Brown to stop.
In fact, Officer Hardin should have arrested
See also the like statement in Thorner v. City of Harvey, 1998 WL
355526, at *11 (N.D.Ill. June 24, 1998):
[T]his court finds that a reasonable jury
could find that a nonparticipatory officer
who had more than a "split-second" to
react to excessive force but "less than a
minute" could have acted to prevent the
harm, at least by telling the malfeasant
officer to stop.
And as Lanigan v. Village of E. Hazel Crest, 110 F.3d 467, 478 (7th Cir.
1997) has reconfirmed:
Whether an officer had sufficient time to
intervene or was capable of preventing
the harm caused by the other officer is
generally an issue for the trier of fact
unless, considering all the evidence, a