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BRANDON v. MAYWOOD

August 3, 2001

JAMES BRANDON, LAVELLE PARKER AND ESSIE NICHOLS, PLAINTIFFS,
v.
VILLAGE OF MAYWOOD, A MUNICIPAL CORPORATION, WILLIAM LEACH, AS CHIEF OF POLICE FOR THE VILLAGE OF MAYWOOD, SERGEANT JAMES ROBINSON, OFFICER SHAWN WOODS, OFFICER DARRYL FAIRLEY AND OFFICER ALVIN CROWELL, DEFENDANTS, VILLAGE OF MAYWOOD, A MUNICIPAL CORPORATION, WILLIAM LEACH, AS CHIEF OF POLICE FOR THE VILLAGE OF MAYWOOD, SERGEANT JAMES ROBINSON, OFFICER SHAWN WOODS, OFFICER DARRYL FAIRLEY AND OFFICER ALVIN CROWELL, DEFENDANTS/THIRD-PARTY PLAINTIFFS, V. LAVELLE PARKER AND ESSIE NICHOLS, PLAINTIFFS/THIRD-PARTY DEFENDANTS



The opinion of the court was delivered by: Elanie E. Bocklo, Judge

          MEMORANDUM OPINION AND ORDER

James Brandon, Lavelle Parker and Essie Nichols sue the Village of Maywood ("Village") and several of its police officers under 42 U.S.C. § 1983 for violations of their constitutional rights, and several state law claims, arising out of a botched would-be drug bust in Maywood, Illinois. The defendants bring motions for summary judgment on all counts of the complaint,*fn1 which I grant in part and deny in part.

I.

The facts in this case are mostly disputed.*fn2 The parties agree that on July 16, 1998, Sgt. Robinson and Officers Crowell, Fairley and Woods, members of a special tactical narcotics unit, were on patrol in plain clothes and in an unmarked squad car in Maywood, Illinois. Mr. Parker was engaged in a conversation with two women behind Ms. Nichols house. The officers claim to have seen a "hand-to-hand narcotics transaction" between Mr. Parker and one of the women. It is not clear whether Mr. Parker was in the alley or on Ms. Nichols property at the time of the alleged "transaction," or whether Mr. Parker fled from the police before they caught him. The officers handcuffed Mr. Parker while he was lying on the ground in Ms. Nichols back yard; there is considerable dispute about whether the officers had drawn their guns at this point, how Mr. Parker came to be on the ground and whether he resisted the officers orders. After handcuffing Mr. Parker, the officers searched the garage on Ms. Nichols property.

Sometime after Mr. Parker was handcuffed, Sgt. Robinson noticed that the back door of the house was ajar and heard a dog barking inside, so he closed the door to the house. Ms. Nichols came out of the house and told the officers to leave. The dog then came out of the back door of the house and started moving toward the officers, who collectively fired nineteen rounds at the dog, wounding it slightly. The dog got within ten feet of one of the officers, but eventually retreated. Mr. Brandon, who was in the back yard of his house next door, was hit in the leg. After the shooting was over, William Leach, the Chief of Police for the Village, arrived on the scene and placed a call to the Illinois State Police Public Integrity Unit to initiate an investigation. Mr. Brandon was taken to the emergency room, treated and released. Mr. Parker was transported in handcuffs to the Village police station. It does not appear that any charges were ever brought against him. The dog was taken to an animal hospital and treated.

II.

Summary judgment is proper when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, I must construe all facts in the light most favorable to the non-moving parties and draw all reasonable and justifiable inferences in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "A genuine issue of fact exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole." Culver v. McRoberts, 192 F.3d 1095, 1098 (7th Cir. 1999) (citation omitted)

III. Section 1983 claims

The defendants argue that all of the individual defendants in this case were sued in their official capacity and should be dismissed as redundant parties. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (suit against municipal official in official capacity is equivalent to suit against municipality itself). The plaintiffs sue William Leach "in his official capacity as Chief of Police for the Village of Maywood,"*fn3 but they fail to specify the capacity in which they sue the individual officers. Here the plaintiffs allege that the individual officers acted tortiously, so they are sued in their individual capacity and I will not dismiss the claims against them as redundant. See Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991).

A. Section 1983 Claims against the individual officers

1. Mr. Brandon

Mr. Brandon was accidentally shot in the leg when the officers shot at the dog. He frames his constitutional claim against the individual officers as a Fourth Amendment claim for excessive force. All claims that a law enforcement officer has used excessive force in the course of an arrest or seizure should be analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989). A seizure under the Fourth Amendment requires purposeful conduct, see Brower v. County of Inyo, 489 U.S. 593, 595 (1989); it is not enough that the officers intended to fire their guns, they must have intended to hit Mr. Brandon for his injury to constitute a seizure for Fourth Amendment purposes. See Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000); Medeiros v. O'Connell, 150 F.3d 164, 168 (2d Cir. 1998); Oledzka v. City of Chicago, No. 88 C 8695, 1989 WL 39500, at *2 (N.D. Ill. March 16, 1989) (no Fourth Amendment cause of action for accidental shooting of innocent bystander).

Although there is no recourse under the Fourth Amendment, Mr. Brandon may seek relief under the substantive due process guarantee of the Fourteenth Amendment. See Schaefer v. Goch, 153 F.3d 793, 797 (7th Cir. 1998). Mr. Brandon must prove that the officers conduct "shocks the conscience." Id. (citing County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)). The more general "deliberate indifference" standard does not apply without the opportunity for forethought. Id. at 798; cf. Khan v. Gallitano, 180 F.3d 829, 836 (7th Cir. 1999). "The sine qua non of liability in cases analogous to high speed chases . . . is a purpose to cause harm." Schaefer, 153 F.3d at 798; see also Medeiros, 150 F.3d at 170 (accidental shooting)

Even assuming that the officers were aware of the presence of innocent bystanders and that they had no previous knowledge of any attacks or viciousness of the dog — disputed here — the parties do not dispute that the dog had been barking and came out of the house and approached the officers, and that the officers reacted quickly. Where the officers were called on to make a split-second decision about whether to shoot at the dog, this is like the high-speed chase in Lewis. Nothing in the record suggests that the officers had "a purpose to cause harm" to Mr. Brandon, so a reasonable jury could not conclude that the officers conduct "shocks the conscience." See Schaefer, 153 F.3d at 798. Because Mr. Brandon fails to state a claim for a constitutional violation, I need not address the question of qualified immunity. See Saucier v. Katz, ...


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