The opinion of the court was delivered by: Kennelly, District Judge.
MEMORANDUM OPINION AND ORDER
On August 9, 1997, Walter Lang Sr. and his son Walter Lang Jr.
were arrested by off-duty Village of Round Lake Park*fn1 police
officer Michael Robinson and by two Village of Fox Lake police
officers, Charles Gliniewicz and John Hoyne. Though Lang Sr.
later pled guilty to a charge of driving under the influence of
alcohol, he and Lang Jr. have sued the officers and the Villages
under 42 U.S.C. § 1983 for false arrest, false imprisonment, and
the use of excessive force and have also made common law claims
against the officers. Defendants have moved for summary judgment.
For the reasons stated below, we grant summary judgment in favor
of the two Villages and the Fox Lake officers, but we deny the
summary judgment motion made by Robinson, the off-duty Round Lake
In support of their summary judgment motions, defendants have
submitted affidavits from Robinson and Gliniewicz, as well as a
video tape from a camera that was mounted on the Fox Lake
officers' squad car. Defendants have also submitted the reports
prepared by the Fox Lake officers concerning the incident. Both
plaintiffs have submitted affidavits in opposition to summary
In his affidavit, Robinson says that in the early evening of
August 9, 1997, he was off duty and driving along Route 12 in Fox
Lake when he saw the Langs' car back into another car. A female
passenger in the second car got out and approached the Langs'
car; Lang Sr. yelled obscenities at her and drove off. Robinson
began to follow the Langs' car along Route 12; it was "weaving
through traffic at an excessive rate of speed." When the Langs
stopped at a light at the intersection of Routes 12 and 134,
Robinson got out of his car, approached the Langs' car, and
identified himself as a police officer. He asked Lang Sr., who
was driving, to turn off the car; Robinson says he did this
because he believed that Lang Sr. was intoxicated. Lang Sr. began
to shout obscenities. Robinson says he noticed that there was a
strong odor of alcohol on Lang Sr.'s breath, his speech was
slurred, and his eyes were red and glassy. When Lang Sr. did not
turn off his car, Robinson reached inside the car to do it
himself. He says
that Lang Sr. lunged at him, which prompted Robinson to spray him
with pepper spray. Lang Jr., who was in the front passenger seat
of the car, then lunged at Robinson, who sprayed him as well.
Lang Jr. stumbled out of the car in the direction of traffic.
Robinson stopped him, but Lang Jr. then threatened him
physically, prompting Robinson to spray him again. Shortly after
this, Fox Lake officers Gliniewicz and Hoyne arrived and, after
speaking with Robinson, took the Langs into custody.
Gliniewicz says in his affidavit that he and Hoyne were
dispatched to the intersection of Routes 12 and 134 to assist an
off-duty Round Lake Park officer who was already there. When they
arrived, Robinson told them essentially the story set forth in
his affidavit. Robinson said he had personally witnessed these
events and would sign complaints against the Langs for hit and
run, improper lane usage, driving under the influence, and
assault.*fn2 Based on all of this, the Fox Lake officers took
Lang Sr. into custody. They summoned medical personnel to treat
the Langs for intoxication and the effects of the pepper spray.
They say that the only contact they had with Lang Sr. was to hold
him so that they could handcuff him, and that they had no contact
with Lang Jr. at all. Gliniewicz also says that while he and
Hoyne were at the scene, the driver and passenger of the car that
the Langs' car had struck arrived and positively identified the
Lang car as the one that had backed into them.
At the Fox Lake police station, a breath test was administered
to Lang Sr., and the result showed a blood alcohol content of
.16. This was above Illinois' legal limit of .08. See 625 ILCS
5/11-501(a)(1). On June 9, 1998, Lang Sr. pled guilty to a charge
of driving under the influence of alcohol. Lang Jr. was not
charged with any offenses.
The Fox Lake officers' police car was equipped with a video
camera. Because the Fox Lake officers arrived after Robinson had
already detained the Langs, the video camera did not record the
initial events at the scene. It does appear, however, to have
recorded all of the events that occurred as the Fox Lake officers
approached the scene and after they arrived. Defendants submitted
the video tape as an exhibit to their motion. The tape does not
depict the use of any excessive force by the Fox Lake officers or
by Robinson after the Fox Lake officers arrived. Rather, it
confirms Gliniewicz's account of the events. At one point on the
tape, the officers hold Lang Sr. for a few seconds in order to
handcuff him, but they otherwise use no force at all against
Lang Sr. and Lang Jr. both submitted affidavits in opposition
to defendants' motions. Lang Sr. says that he was not intoxicated
or under the influence of alcohol. He says that if he had any
contact with the car behind him on Route 12, it consisted of "a
very slight touching of the bumpers caused either by my backing
up to let another driver negotiate a nearby driveway as a
courtesy to that driver, or by the moving forward of" the car
behind. He did not believe there was anything to report to the
authorities, and he says that the occupants of the other car did
not request insurance information or police assistance. He also
says Robinson could not have seen the incident, because based on
a diagram accompanying Robinson's police report, Robinson was in
front of Lang's car and the other car at the time of the
According to Lang Sr., after he stopped at the light at the
intersection of Routes 12 and 134, he was approached by a man in
a t-shirt and jeans who "came out of nowhere, suddenly startling
[him]," struck the window of his car with an object, and demanded
his car keys. Lang Sr. says the man, whom he now knows to be
Robinson, "never did anything which led me to believe he was a
police officer" but rather "gave me the impression that he was
trying to steal my vehicle." When he did not immediately respond
to the demand for his keys, Lang Sr. says, the man sprayed him in
the face with a burning liquid, causing him pain. He then felt
himself being beaten about the head, shoulder, arm and chest.
Lang Sr. denies threatening Robinson and also denies having
alcohol on his breath, red or glassy eyes, or slurred speech.
Lang Sr. says that "[a]fter the spraying by [Robinson], I was
repeatedly beaten about the head, shoulders, arm and hands and
stomped on and kicked in the head and shoulders by [Robinson] and
two other officers," whom he now knows to be Hoyne and
Gliniewicz. He says he did not threaten them and did nothing to
resist in any way.
With regard to his guilty plea to the DUI charge, Lang Sr. says
he asked his attorney to withdraw his guilty plea, but the
attorney refused, so he filed a pro se motion to withdraw the
plea on the grounds that he was innocent. The judge, however,
denied his motion on grounds that are not disclosed.
Lang Jr. corroborates his father's account and says Lang Sr.
was not driving at a high rate of speed, using improper lanes, or
changing lanes improperly. Lang Jr. says that he did nothing to
provoke Robinson to spray him with the pepper spray and that he,
too, was beaten about the head, shoulder, arm and chest,
presumably by Robinson, before the other officers arrived. He
says he did nothing to resist, and he also claims to have been
beaten by the two other officers who arrived at the scene after
Robinson had sprayed him.
Summary judgment is appropriate only if the affidavits and
other evidentiary materials submitted by the parties show "that
there is no genuine issue as to any material fact and that the
moving party is entitled ...