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April 2, 1999


The opinion of the court was delivered by: Shadur, Senior District Judge.


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 Cir. 1997)).

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 opinion.


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).

Several of Regalado's friends arrived on the scene after the beating. Garcia instructed them to get a hose and wet down Regalado to wake him up. That, and other efforts such as squeezing Regalado's testicles, were unsuccessful in rousing him from his unconscious state (id. ¶¶ 25, 34).

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
  Officer Brown.

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

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