held in Grandstaff,
however, was that officers knowledge that their acts will meet with
approval could establish that the custom or practice was the moving force
behind the violation, not that the municipal policy maker had actually
acquiesced in their conduct so as to prove that a custom or practice
Here, as in Grandstaff, the plaintiffs have not produced any evidence
of prior incidents similar to those alleged, nor have they produced any
evidence from which a jury could conclude that there was a widespread
practice or custom of conducting unconstitutional searches or using
excessive force in the course of an arrest. Even looking at all of the
events of that afternoon in the aggregate, as the Grandstaff court did,
no reasonable jury could infer the existence of a custom or practice from
this one incident. See Roach, 111 F.3d at 549. Summary judgment is
granted on the claims against the Village in Counts I, III and V.
IV. State law claims
Although I have granted judgment against Mr. Brandon on his federal
claim, I may retain jurisdiction over his state law claim, see Groce v.
Eli Lilly & Co., 193 F.3d 496, 500-01 (7th Cir. 1999), and I do so here.
Mr. Brandon brings a claim for "willful and wanton misconduct" that both
parties interpret as a claim for battery. Under Illinois law, a battery
occurs when a person intentionally causes harmful or offensive contact
with another. Cohen v. Smith, 648 N.E.2d 329, 332 (Ill. App. Ct. 1995).
The defendants do not dispute that a battery occurred, but they argue
that they are not liable because they acted in self defense. A person is
justified in defending himself if he reasonably believes that he is being
threatened with immediate bodily harm, so long as he uses only such force
as is reasonably necessary under the circumstances. Blackburn v.
Johnson, 543 N.E.2d 583, 587 (Ill. App. Ct. 1989). Whether or not Officer
Fairley had reason to think the dog was dangerous, there is a genuine
dispute about whether the dog had stopped advancing when the officers
started to shoot, whether they continued to shoot after the dog
retreated, whether they shot in the direction of Mr. Brandon's yard, and
whether they were aware that there were people in Mr. Brandon's
backyard.*fn11 Viewed in the light most favorable to Mr. Brandon, a jury
could reasonably conclude from these facts that the officers continued to
use force after the dog retreated and there was no continuing threat of
bodily harm, and that the force used by the officers under the
circumstances was not reasonable. See People v. Jackson, 340 N.E.2d 673,
678 (Ill. App. Ct. 1975) (self-defense is not available where initial
aggressor is in retreat).
In the alternative, the officers argue that, if they are liable, they
are entitled to immunity under the Illinois Tort Immunity Act, 745 ILCS
10/2-202. Section 2-202 immunizes public employees from liability in the
course of execution or enforcement of the law, unless their acts
constitute willful and wanton conduct. "Willful and wanton conduct" is
defined as "a course of action which shows an actual or deliberate
intention to cause harm or which, if not intentional, shows an utter
indifference to or conscious disregard for the safety of others or their
property." 745 ILCS 10/1-210. Mr. Brandon argues that their acts show
"utter indifference." If the officers were reckless, i.e., if they
"ignore[d] known or plainly observable dangerous conditions and [did]
something that will naturally and probably result in injury to another,"
their conduct may be characterized as "willful and wanton." Mostafa v.
City of Hickory Hills, 436 N.E.2d 623, 630 (Ill. App. Ct. 1997). This is
ordinarily a question of fact for the jury and should rarely be ruled
upon as a matter of law. Id. The evidence here does not overwhelmingly
favor the defendants such that a judgment for the plaintiffs could not
stand. See id. Summary judgment is denied as to Count II.
Mr. Parker brings a claim for false imprisonment under Illinois law.
"The essential elements of a cause of action for false arrest or false
imprisonment are that the plaintiff was restrained or arrested by the
defendant, and that the defendant acted without having reasonable grounds
to believe that an offense was committed by the plaintiff." Meerbrey v.
Marshall Field & Co., Inc., 564 N.E.2d 1222, 1231 (Ill. 1990). I have
already held that Mr. Parker was arrested, and that there are questions
of fact which preclude a determination as a matter of law that the
officers had reasonable grounds to believe that Mr. Parker had committed
a crime. The officers argue that they are entitled to immunity under
§ 2-202, but viewing the facts in the light most favorable to Mr.
Parker, a jury could conclude that the officers were at least reckless in
their determination that they had probable cause or reasonable suspicion
to seize him. See Mostafa, 436 N.E.2d at 630. Summary judgment is
therefore denied as to Count W.
The plaintiffs claims against Chief Leach in Counts I, III and V are
DISMISSED. The defendants motion for summary judgment as to Mr. Brandon
is GRANTED as to Count I and DENIED as to Count II. The defendants motion
as to Mr. Parker is DENIED as to Count IV and DENIED as to the claims
against the individual officers for arrest without probable cause in
Counts III, but GRANTED with respect to the claims in Count III against
the Village and claims against the individual officers for excessive use
of force. The defendants motion is GRANTED as to the claims in Count V.
The defendants motion to strike certain paragraphs of the plaintiffs
response to the statement of material facts is DENIED IN PART and
otherwise DENIED as moot.