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March 28, 2002


The opinion of the court was delivered by: Ruben Castillo, U.S. District Judge.


This lawsuit involves the difficult issue of police misconduct. The plaintiff Jeremiah Mearday ("Mearday") was the prior victim of an excessive police force incident which occurred on September 26, 1997, and which ultimately led to the dismissal of two police officers on March 12, 1998. This lawsuit which was first filed in state court and removed to federal court, involves a subsequent incident between Chicago police officers and Mearday which occurred on March 19, 1998. The action is brought pursuant to 42 U.S.C. § 1983 (Counts I, II and III) and the Illinois common law of malicious prosecution and respondeat superior (Counts IV and V). Mearday alleges that he was stopped, arrested, improperly searched and falsely charged with crimes as a result of a retaliatory conspiracy involving Defendant Chicago police officers Joel F. Bemis, Michael J. Brosnan, Wayne Thompson, Thomas Kwasinski, John Fuller, James Benson and Michael Mazzoccoli (collectively "Defendant Officers"). Mearday further alleges excessive force on the part of Bemis, Brosnan, Thompson and Kwasinski. Finally, Mearday contends that the City of Chicago's ("City") alleged policy of failing to supervise and discipline police officers and investigate complaints led to the events that occurred on March 19, 1998.

Both Defendant Officers and the City have filed motions for summary judgment. Defendant Officers move for summary judgment on the Fourth Amendment claims (Counts I and II). They contend that their actions were not motivated by any retaliatory animus, and that such allegations are irrelevant because their actions were objectively reasonable. As such, Defendant Officers argue that they are entitled to qualified immunity on Mearday's Fourth Amendment claims. Defendant Officers further contend that they are entitled to judgment as a matter of law on Mearday's Fourth Amendment malicious prosecution claim. At the same time, Defendant Officers move to strike various portions of Mearday's response. The City seeks summary judgment on the mongrel claim (count III), contending that Mearday cannot show the requisite elements of a policy claim. For the following reasons, Defendant Officers' motion for summary judgment as to Counts I and II is granted, (R. 145-1), the City's motion for summary judgment as to Count III is granted, (R. 136-1), and Defendant Officers' motions to strike, (R. 163-1, 164-1), are denied as moot. The state law claims of malicious prosecution and respondeat superior (Counts IV and V) are remanded to the state circuit court from which they were removed.


I. Background*fn2

Mearday alleges that the claims in this case relate back to the shameful events of September 26, 1997. On that date, Mearday was beaten with a flashlight by Chicago police officers James Comito and Matthew Thiel and left with injuries requiring a week of hospitalization and reconstructive oral surgery. Charges were filed against Comito and Thiel. After a Police Board hearing, at which Mearday testified, the two officers were separated from the Chicago Police Department on March 12, 1998.

The beating and the legal proceedings surrounding the September 26, 1997 incident garnered significant public interest. Both police and Mearday supporters regularly attended court proceedings. The story was also reported in newspapers and on local television stations. In addition, the beating and the legal proceedings surrounding it led to public protest, including marches and rallies, by both pro-Mearday community members and police officers.*fn3

II. The Events of March 19, 1998

In the early morning hours of March 19, 1998, a Chicago police officer from the 25th District was shot in the face by an individual using a machine gun. The shooting occurred while the police were pursuing a van. Witnesses stated that more than one person was involved in the shooting. The shooting occurred at 3900 West Division, approximately thee blocks from Mearday's home at 4022 West Crystal.*fn4

Officers Bemis, Brosnan and Thompson reported to work at the 25th District between 8:00 and 9:00 a.m. Bemis, Brosnan and Thompson began looking for the suspected shooter, Maurice Albea, at about 9:30 a.m. Bemis drove the unmarked police car while Thompson sat in the front passenger seat and Brosnan in the rear seat. The thee officers contend that before 1:00 p.m. they drove to known addresses for Albea and to other unspecified locations. At approximately 12:30 p.m., the officers asked Marcellus King to assist them in locating Albea, and King proceeded to ride in the police car with the officers.*fn5 In the approximately thirty minutes that King was riding with the thee officers, they did not stop to interview anyone, although Thompson alleges that Bemis and Brosnan stopped a few people on a street corner earlier in the day. (R. 167, Officers' Resp. to Pl.'s Add'l Facts ¶ 55.)

At approximately 1:00 p.m., Mearday left his house and walked east on Crystal to a bus stop near the corner of Crystal and Pulaski to meet his girlfriend who was arriving by bus. At around the same time, Bemis, Brosnan and Thompson were driving north on Pulaski and contend that they saw a black male, who they allegedly did not recognize as Mearday, walking east on Crystal toward Pulaski. (R. 146, Officers' Facts ¶ 12.) Bemis contends that Mearday was "looking around quickly, hastily," (R. 167, Officers' Resp. to Pl.'s Add'l Facts ¶ 53.) Mearday admits that the sight of the police car made him feel nervous and scared. When Mearday saw the police car drive past, he turned around and walked back to his house. Defendant Officers contend that Thompson then told Bemis to go around the block so that they could get a better look at the man who had turned around. (Id.) Bemis admits that he saw pictures of Mearday on television, although he denies recognizing him during the incident on March 19, 1998. (R. 167, Officers' Resp. to Pl.'s Add'l Facts ¶ 61.) Bemis drove the car around the block and stopped in the area in front of Mearday's house where Mearday was standing.

Mearday contends that the initial encounter with the three officers in front of his house began with Bemis stating, "Come here," as he had one foot out of the car.*fn6 (R. 153-1, Pl.'s Exs., Ex. B, Mearday Dep. at 125, 127.) Both parties admit that Bemis thought he saw Mearday stick his hand under his jacket and into his waistband, as if he had a weapon.*fn7 (R. 155, Pl.'s Add'l Facts ¶ 64.) Bemis further alleges that he believed Mearday might be armed, although, in fact, he was not. (R. 153-1, Pl.'s Exs., Ex. D, Joel Bemis Dep. at 86.) Rather, Mearday had a telephone in his coat pocket (Id.) Mearday maintains that he responded to Bemis' call by walking backward with his hands up while stating that he had not done anything. (R. 153-1, Pl.'s Exs., Ex. B, Mearday Dep. at 124-125.) According to Mearday, Bemis then got out of the car with his service weapon drawn. Mearday then turned around and "started going for" or ran to the door of his house.*fn8 (Id. at 128.) He tried to enter the house, but could not grip the doorknob because his hands were shaking. Mearday then turned around, saw both Bemis and Thompson holding guns, put his hands up and dropped to his knees. (R. 153-1, Pl.'s Exs, Ex. B, Mearday Dep. at 142.) Bemis reached Mearday first and tried to place a handcuff on Mearday's hand. Mearday pulled away his hand, crossed his arms, fell on his chest and stayed on the ground. The officers tried to pry Mearday's arms from underneath him to place him in handcuffs, but Mearday struggled to keep the officers from handcuffing him. Mearday does not allege that the arresting officers beat or punched him, but testifies that there was a lot of "scuffling." (R. 146, Officers' Facts ¶ 37; R. 147-2, Officers' Exs., Ex. E, March 7, 2001 Trial Tr. at 101.) Although Mearday denied intentionally striking any officer, he admits that he kicked Brosnan in the groin as Brosnan tried to help Bemis handcuff him. (R. 146, Officers' Facts ¶ 31.) Thompson also tried to help Bemis handcuff Mearday after handing the shotgun to Brosnan. Brosnan then issued a call for immediate assistance because the three officers could not get Plaintiff handcuffed. Officer Kwasinksi, from the 25th District, responded to the call and put his knee on Mearday's shoulder to force him to release his right hand from underneath his body. Mearday stopped struggling, was handcuffed, got to his feet and screamed that his name was Jeremiah Mearday. In response one of the officers stated, "We know who the f___ you are." (R. 155, Pl.'s Add'l Facts ¶ 72.)*fn9 Mearday was then taken to the 25th District police station.

According to Mearday, upon his arrival at the police station, Mazzoccoli and another unidentified police officer described as "Arab"-looking placed Mearday in an interrogation room and handcuffed him to a ring on the wall. (R. 147-2, Officers' Exs., Ex. G, Mearday Dep. at 169-171.) Within approximately twenty minutes, three officers entered the interrogation room — identified by Mearday as Mazzoccoli, an "Arab"-looking officer and a short blond officer — and strip searched Mearday. (Id. at 175-76.) The searching officers were identified by Defendant Officers as Benson and Fuller. (R. 153-1, Pl.'s Exs., Ex. G. John Fuller Dep. at 95.) During this first search, Mearday was stripped to his underwear and also had his boots searched. (R. 147-2, Officers' Exs., Ex. G, Mearday Dep. at 178-79.) Sometime thereafter, the same three officers reentered the room, closed the door and conducted another strip search of Mearday. After the second strip search, Mearday got dressed and was re-handcuffed to the ring. The three officers then left the room. Thereafter, the short blond officer reentered the room and asked for Mearday's boots and Mearday kicked one boot over to the officer. The short blond officer responded, "[T]his is all I need," and closed the door. (R. 147-2, Officers' Exs., Ex. G, Mearday Dep. at 196.) Thereafter, Mazzoccoli and the "Arab"-looking officer entered the room, whereupon Mazzoccoli told Mearday that he was under arrest for resisting arrest, battery and possession of drugs. The officers claimed to have found crack cocaine in the boot they obtained from Mearday. Mearday maintains that he did not have any drugs in possession on March 19, 1998.*fn10

Mearday was charged with three counts of aggravated battery, one count of possession of a controlled substance and one count of possession with intent to distribute. The charges of possession with intent to distribute and possession of narcotics were dismissed by the prosecution in May 2000.*fn11 The charge of aggravated battery against Thompson was dismissed at trial. Mearday was tried before a jury on the aggravated battery charges against the other two police officers and acquitted.

Currently before the Court is the Defendant Officer's motion for summary judgment as to Counts I and II on the grounds of qualified immunity and the City's motion for summary judgment on Count III. For ...

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