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January 4, 2000


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


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 Park officer.


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 judgment.

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 either Lang.

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 incident.*fn3

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 ...

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