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March 19, 2003


The opinion of the court was delivered by: John W. Darrah, United States District Judge


Plaintiffs, Steve Hindi ("Hindi"), Greg Campbell ("Campbell"), and Showing Animals Respect and Kindness ("SHARK"), filed suit against Defendants, Thomas Gooch III ("Gooch"), Albert Wysocki ("Wysocki"), John Van Dien ("Van Dien"), Gary Del Re ("Del Re"), Michael Waller ("Waller"), the Village of Wauconda ("Wauconda"), and Daniel Quick ("Quick"). Count I alleges conspiracy to retaliate for the exercise of First Amendment rights. Count II seeks declaratory and injunctive relief against Wauconda and Quick. Count III alleges conspiracy to commit a malicious prosecution.

Currently before the Court is Wauconda and Quick's Motion to Dismiss, Gooch and Wysocki's Motion to Dismiss, and Van Dien's Motion to Dismiss. In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and any reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000) (Marshall-Mosby). Dismissal is warranted only if "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The plaintiff need not state all the facts necessary to establish the claim; and the "suit should not be dismissed if it is possible to hypothesize facts, consistent with the complaint, that would make out a claim." Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995).

Although the First Amended Complaint contains three counts, the underlying allegations are myriad and somewhat complicated. Accordingly, it is appropriate to set out all these operative allegations necessarily considered in support and in defense of the motions before analyzing them pursuant to the applicable law. The Court emphasizes that the following is a summary of the allegations set out in Plaintiffs' First Amended Complaint.

Background Facts

The Wauconda Chamber of Commerce ("WCC") has presented the annual Wauconda Rodeo ("Rodeo") for many years. The Rodeo is held, in part, to promote local business interests in return for sponsorship of the Rodeo by these businesses. The WCC charges admission to the Rodeo as a public event. Wauconda supports and promotes the Rodeo. In recent years, the Rodeo has been held at the Golden Oaks Farms ("Farm"). The Farm is adjacent to two public ways: Case Road and Route 12.

In 1993, persons organized as the North West Animal League and the Chicago Animal Rights Coalition ("CHARC") to protest the maltreatment of circus and rodeo animals and the Rodeo's alleged violation of the Humane Care of Animal Act. In 1994, some of the present Plaintiffs, who were members of CHARC, undertook various activities to protest the Rodeo, including picketing various Wauconda businesses that sponsor the Rodeo. On June 21, 1994, in reaction to the protests, the Wauconda Village Board enacted an ordinance entitled, "Parades and Assemblies on Public Property."

The WCC contracted with the Lake County Sheriff's Office to provide deputy sheriffs as privately paid "security forces" for the Rodeo. The WCC, through its officers, directors, and/or spokespersons at the Rodeos in 1994, 1995, 1996, and 1997, directed the activities of the deputies. In 1995, by agreement with and under the direction of the WCC, the deputy sheriffs restricted the Plaintiffs' demonstration to an area selected by the WCC, which provided no access to the Rodeo audience. The deputies ordered the protesters to keep moving and demanded the abandonment of the protesters' banners. The deputies also prohibited the protesters from displaying signs and from videotaping the protest and actions of police officers at the protest. The deputies threatened to charge the protesters with various criminal charges, including mob action, conspiracy, and violations of eavesdropping law if any of their orders were not followed. Prior to this time, Del Re publicly stated that the use of megaphones for protest was legal. Nevertheless, during the Rodeo, Captain Frank Winans ("Winans") told the protesters that, because some of the Rodeo sponsors and participants objected to the protesters' amplified messages, the continued use of the megaphones would be deemed as disorderly conduct and would result in the protesters' arrests.

In 1995, Van Dien arrested Campbell and Hindi, charging them with disorderly conduct for their use of megaphones in their protests. At the time of the arrests, Van Dien was aware that Hindi and Campbell were the leaders of CHARC. The charges were later dismissed by the Lake County State's Attorney's Office.

The July 1996 Incidents

On July 13, 1996, Winans and Van Dien were part of a security detail at the annual Rodeo. Winans and Van Dien noticed three paragliders and one hot-air balloon flying in the vicinity of the Rodeo. Winans and Van Dien believed that the paragliders and the balloon were associated with a protest. Winans and Van Dien both knew Campbell and his wife, Terri Campbell ("Terri"), from previous Rodeo encounters. Both Winans and Van Dien also knew that Terri suffered from advanced Multiple Sclerosis and that she required a cane for walking and was required to sit frequently as a result of her disability.

On this day, Winans and Van Dien approached Campbell, who was surrounded by a small group of protesters. At the same time, another member of CHARC, Sue Piszczek ("Piszczek"), was operating a handheld video camera. An independent news cameraman and reporter were also videotaping the protest. Winans approached Campbell and ordered Campbell to use Campbell's handheld radio to order the gliders out of the Rodeo area. Winans told Campbell that if he did not comply, he would be charged with mob action. Campbell truthfully responded that the radio battery was dead. Winans attempted to grab the radio from Campbell, who threw it over his shoulders into the air. Immediately thereafter, Van Dien, who at the time was approximately 64" and weighed over 250 pounds, charged towards the protesters. Terri and another protester were standing in the area where the radio landed and walked to pick up the radio. As they did so, Van Dien knocked Terri to the ground. The radio then flew in the direction of Christine Grushas ("Grushas"). Van Dien continued his "charge", tackling Grushas to the ground and knocking the radio to the ground.

In the interim of these events, Winans ordered Campbell's arrest. He also went near Grushas and retrieved the radio. At or about the same time, Piszczek yelled "It's all on film Winans." Winans then order Van Dien to arrest Grushas.

Van Dien proceeded to grab Piszczek, who suffers from Spina Bifida and weighed 90 pounds. Piszczek fell to the ground, and Van Dien forcibly twisted the camera from Piszczek's hand and tucked the camera under his arm. Piszczek was not arrested.

Van Dien hid the camera under Grushas's backpack, concealing it from casual view, and escorted Grushas to the area of the Rodeo where deputies maintained a padywagon for detention. Van Dien then took Piszczek's video camera and removed the tape from the camera and confiscated it pursuant to instructions from Winans. Thereafter, on instructions from Winans, Van Dien filed false official police reports indicating that he had found the camera lying on the grass. Piszczek's camera was inventoried as evidence without the tape.

Campbell, Hindi, and several other CHARC members were also arrested and charged with disorderly conduct for their use of megaphones during their protest. Subsequently, the State's Attorney's Office dismissed all charges against all of those arrested.

Following the dismissal of the charges, Campbell and Hindi, as well as other CHARC members, made public statements of their intent to bring public suit to secure their rights under the First Amendment. Thereafter, the State's Attorney and Waller reinstated the disorderly conduct charges and added the charges of conspiracy to commit disorderly conduct against the same individuals.

Also on July 13, 1996, Michael Durschmid ("Durschmid") went into the Rodeo ring with a bicycle lock around his neck and lied down on the ground, refusing to move. Durschmid took this action to protest an event at the Rodeo in which small children were allowed to ride sheep. The children were not allowed to wear protective gear, and Durschmid believed that the activity was harmful to the sheep. Durschmid was arrested based on his conduct and charged with criminal trespass to property and resisting arrest.

The Conspiracy

Prior to February 10, 1997, Waller and Del Re agreed to cover up the criminal acts committed by Winans and Van Dien that occurred on July 13, 1996; and they agreed to destroy, or at least substantially compromise, CHARC's ability to protest the annual Rodeo and to document animal abuse. In general, Waller and Del Re agreed that they would secure the criminal convictions of Hindi and Campbell as well as a number of other protesters. To implement this plan, Waller, Del Re, Winans, and Van Dien agreed that Van Dien and Winans would testify falsely at the forthcoming criminal trials. Waller and Del Re also agreed to cover up Van Dien's seizure of Piszczek's camera and subsequent destruction of the tape and Van Dien's filing of false reports.

Waller and Del Re also sought to directly benefit their own political interests by conferring a direct benefit on the WCC. Waller and Del Re schemed to receive "No Contact Orders" against any of the convicted individuals (Plaintiffs in the instant case). Such an order would prohibit a convicted defendant from contact with the victim. Waller and Del Re knew that such an order would be difficult to obtain. However, they also knew that their offices had the power to influence certain judges in Lake County.

In order to implement their plan, Waller recruited Daniel Shanes ("Shanes"), an Assistant State's Attorney. Waller knew that Shanes would do anything to advance his career. Waller and Del Re also knew that the judge most likely to hear the bulk of the 1996-protester cases would be Judge Phillips. Waller and Del Re both knew and agreed that Judge Phillips could be corrupted by the combined influence of their offices and the WCC.

The Grushas Trial

Grushas's trial was set for February 10, 1997. Sometime prior to this date, Shanes was provided videotapes made by the protesters and the independent news crew depicting the events of July 13, 1996. In September 1996, Waller and Del Re were personally made aware of the tapes which depicted the events of July 13, 1996. Waller instructed Shanes to cover up Van Dien's false police reports. Shanes agreed with Van Dien that Van Dien would testify falsely to cover up his conduct of July 13, 1996.

At Grushas's bench trial, heard by Judge Lawler, Van Dien testified falsely about the July 13, 1996 events. Judge Lawler acquitted Grushas after his review of the videotape provided by Grushas which depicted Van Dien's conduct.

Hindi Publicizes the July 13, 1996 Videotapes

On May 5, 1997, Hindi appeared in front of the Lake County Sheriffs Office equipped with the videotape and a monitor showing Van Dien seizing Piszczek's camera and confiscating the tape within the camera. In addition, Hindi distributed a ...

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