The opinion of the court was delivered by: Rebecca R. Pallmeyer, United States District Judge.
MEMORANDUM OPINION AND ORDER
The facts giving rise to this lawsuit took place early on the morning of June 3, 2000 when James Pacetti, a Cook County Sheriff's Officer, utilized a police dog to apprehend and arrest the Plaintiff, Jacob L. McGovern. In Count I of his complaint, McGovern invokes 42 U.S.C. § 1983, alleging that Pacetti used excessive force in violation of Plaintiff's rights under the Fourth and Fourteenth Amendments by instructing his trained police dog to bite McGovern multiple times in conjunction with his arrest. In Counts II and III, McGovern alleges Illinois common law claims for assault and battery against Officer Pacetti and the Cook County Sheriff's Department. The Defendants now move for summary judgment. They argue that Plaintiff's § 1983 claim fails because as a matter of law Officer Pacetti's use of the police dog was reasonable; the assault and battery claim against Officer Pacetti fails because McGovern did not demonstrate that Officer Pacetti lacked a legal justification for using the dog to apprehend and arrest him; and because Officer Pacetti is not liable for the injuries sustained by the Plaintiff, the Sheriff of Cook County is immune from liability under the Illinois Tort Immunity Act.
For the foregoing reasons, the Defendants' motion is denied.
At approximately 2:00 A.M. on the morning of June 3, 2000, the Plaintiff, Jacob McGovern, who was driving his vehicle through a residential area in Oak Lawn, Illinois was pulled over by Michael Acke, a police officer with the Oak Lawn Police Department.*fn2 (Defendants' Statement of Material, Uncontested Facts ¶¶ 3, 10) (hereinafter, "Defs.' 56.1,") As a result of a computer check of the Plaintiff's car, Officer Acke learned that McGovern was wanted on two warrants, that his driver's license was suspended, and that he was believed possibly armed and dangerous. (Id. at ¶ 10.) After stopping his vehicle, McGovern, who was wearing short pants and a short sleeve shirt and was barefoot, immediately exited his vehicle to speak with Officer Acke. (Defs.' 56.1 ¶ 4; Plaintiff's Statement of Additional Facts ¶¶ 4, 7) (hereinafter, "Pl.'s 56.1.") While standing at the back of McGovern's car, Officer Acke asked McGovern some questions and, in response, McGovern provided false information. (Defs.' 56.1 ¶¶ 6, 8.) Specifically, McGovern lied to Officer Acke about his name and date of birth.*fn3 (Id.)
After McGovern supplied this false information, Officer Acke started to reach for the police radio he wore on his chest, but before Officer Acke could use the radio, McGovern turned around and ran from the scene. (Id. ¶ 9) Officer Acke claims that McGovern hit him before running away, an allegation that McGovern denies. (Id. ¶ 12; McGovern's Deposition, Exhibit 2 to Plaintiff's 56.1 Statement (hereinafter "McGovern's Dep."), at 28.) There is no dispute, however, that McGovern made a highly spirited attempt to escape Officer Acke by climbing over several fences and running through a number of yards in the residential neighborhood. (Defs.' 56.1 ¶¶ 13-15).
Officer Acke immediately pursued the Plaintiff and at the same time requested the assistance of other officers. (Id. ¶ 17) As officers responded, they set up a perimeter to contain the general area where McGovern was running. (Id. ¶ 18.) Among the officers to respond to Officer Acke's request for assistance was James Pacetti, a certified canine handler and police officer with the Cook County Sheriff's K-9 unit, accompanied by Arno, a certified police dog. (Id. ¶¶ 20, 22.) When Officer Pacetti arrived at the scene, Officer Acke advised him that the suspect had hit Acke before fleeing the scene of a traffic stop. (Id. ¶ 23.) Officer Acke also told Officer Pacetti that the suspect had two active warrants and might be armed. (Id.)
At an undetermined point in the chase, McGovern recognized that he was not going to escape the police by running and decided to hide. (Id. ¶¶ 24-26.) After leaping a five foot privacy fence, Plaintiff discovered a wood and metal trailer located in a homeowners backyard, which he selected as his hiding spot. (Id. ¶¶ 25-26.) Plaintiff crawled underneath the trailer into an area that was just big enough for his body to fit. (Id. ¶ 27.) Although it was dark underneath the trailer, the yard around the trailer was lit by street lights and a house porch light. (Pl.'s 56.1 ¶ 10.) The area beneath the trailer in which Plaintiff hid was partially surrounded by a fence. (Defs.' 56.1 ¶ 28.)
Soon after crawling under the trailer, McGovern heard four or five unnamed officers talking in the yard near the trailer. (Id. ¶ 29.) The officers were unable to locate McGovern on their own and asked that Officer Pacetti and his dog Arno assist in the search. (Id. ¶ 30.) Officer Pacetti then brought his dog to the area near where McGovern was last seen and near where the Plaintiff was in fact hiding. (Id.)
At this point in the sequence of events, the parties' versions begin to vary; they dispute how Officer Pacetti and his dog performed the search and subsequent seizure of McGovern. According to Officer Pacetti, after he arrived on the scene with Arno, he called out to identify himself and the canine. (Pacetti Deposition, Exhibit 2 to Defs.' 56.1, at 73; Pacetti's Trial Testimony, Exhibit 3 to Defs.' 56.1 (hereinafter "Pacetti's Trial Testimony"), at 62.) Specifically, Officer Pacetti shouted that he was with the Cook County Sheriff's Police Canine Unit and if the Plaintiff did not identify himself, the dog would be released to search for him. (Id.) Officer Pacetti claims, further, that he repeated this initial warning three times. (Pacetti's Trial Testimony, at 62.) At the conclusion of these warnings, he added, "This is your final warning from the Sheriff's Police Canine. Announce yourself or the dog will be utilized for search." (Id. at 63.)
McGovern denies that Officer Pacetti yelled out a warning prior to releasing the dog, but does acknowledge hearing someone yell that a canine was going to be released into the yard to perform a search. (McGovern's Dep., at 42.) He remained in his hiding spot, however, because he was afraid to come out. (Id. at 42-43.)
Initially, both sides agree, Arno was released to do a "find and bark" search and ultimately found the Plaintiff underneath the trailer. (Defs.' 56.1 ¶¶ 37-39.) McGovern felt something cold at the bottom of his feet and when he looked down he realized it was the dog's nose touching his bare feet. (McGovern's Dep., at 43.) At this point, Officer Pacetti and the other officers located the Plaintiff on the ground hiding underneath the trailer. (Defs.' 56.1 ¶ 40.) McGovern remembers seeing flashlights light up the space underneath the trailer and hearing a number of officers yell that they had found him, while the dog remained by his feet. (McGovern's Dep., at 44.)
The parties dispute what happened next. According to Pacetti, after McGovern was located, Pacetti recalled the dog and issued a second round of verbal warnings, which he again repeated three times, warning that the Plaintiff must come out or the dog would be used to apprehend him. (Pacetti's Trial Testimony, at 65-66.) McGovern did not come out from underneath the trailer, however (Defs.' 56.1 ¶¶ 43-44), and Officer Pacetti ordered Arno to apprehend the Plaintiff. (Pacetti's Trial Testimony, at 67.) In response to this order, Arno went under the trailer and bit the Plaintiff's left arm, his right calf, and the lower backside of his right hip. (Defs.' 56.1 ¶ 46.) After these bites, Officer Pacetti recalled Arno to his side. (Id. ¶ 45.)
Plaintiff disputes the details concerning these initial dog bites. First, McGovern asserts that after finding Plaintiff, the dog never retreated or returned to Officer Pacetti. (McGovern's Dep., at 44.) In addition, McGovern denies that Officer Pacetti issued a second warning before the dog bit him. (Id. at 43-45.) Lastly, he claims that the bites took place after the officers started yelling and the dog became agitated. (Id.) Both sides agree, however, that at some point after these initial bites, the dog stopped biting McGovern, and Plaintiff offered to surrender. (Defs.' 56.1 ¶ 46.) Despite this offer, Plaintiff did not immediately come out from his hiding spot because he was afraid of the dog. (Id. ¶ 48.) The parties further agree that after the initial bites, certain officers ordered McGovern to put his hands in the light of a flashlight to allow the officers to see his hands. (Id. ¶ 50.) McGovern asked that the dog be called off before he put his hands into the light and the officers refused. (Id. ¶ 51.) McGovern notes that when the officers ordered him to put his hands in the light, his ability to get out from under the trailer was inhibited by a fence on one side and the axle of ...