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February 27, 2004.

JOSEPH A. LUNINI, JR., Plaintiff,
CHARLES V. GRAYER, individually, JOHN STENSON, individually and in his capacity as Chief of Police for the City of Peoria, Peoria, Illinois, STUART HARDEN, individually, JEFFREY KICE, individually, Defendants

The opinion of the court was delivered by: JEANNE SCOTT, District Judge


This matter comes before the Court on Defendant Charles V. Grayeb's Motion for Summary Judgment (d/e 144) and on Defendants John Stenson, Stuart Harden and Jeffrey Kice's (collectively City Defendants) Motion for Summary Judgment (d/e 143). For the reasons stated below, Defendant Grayeb's Motion for Summary Judgment is allowed in part and denied in part, and the City Defendants' Motion for Summary Judgment is allowed in part and denied in part.


  Defendant Charles Grayeb is a member of the Peoria City Council. Defendant John Stenson is the Police Chief for the Peoria Police Department. Defendants Stuart Page 2 Barden and Jeffrey Kice are police officers with the Peoria Police Department.

  Defendant Grayeb and Plaintiff Joseph A. Lunini, Jr. met in June 1995.*fn1 Lunini and Grayeb began a personal, sexual relationship in June of 1995, and terminated it sometime in the first half of 2000. In December 1995 or January 1996, Lunini and Grayeb began to reside together at 502 Northeast Monroe Street, Peoria, Illinois. In 1996, Lunini and Grayeb purchased apartments located at 504-504 ½ Northeast Monroe Street, Peoria, Illinois ("Monroe Street Apartments"). They purchased the property as a business venture. Grayeb Memorandum in Support of Motion for Summary Judgment (Grayeb). (d/e 145) p.3, ¶ 2.

  In 1997, Lunini and Grayeb moved into the residence at 510 West High Street (High Street Residence), Peoria, Illinois. Grayeb purchased the West High Street property in August 1997; he is the sole record owner of the property. There are eight rooms on the first floor of the High Street Residence, seven rooms on the second floor, and five rooms on the third floor. There is only one kitchen. Grayeb currently lives throughout the entire residence. The residence is a single family home. Lunini Response to City Defendants' Motion for Summary Judgment (Lunini) (d/e 153) p. 29, ¶ 105. Lunini also resided at the High Street Residence from 1997 until 2000. From 1997 until June 2000, Lunini's children would visit the High Street Residence almost every weekend. The only persons who lived at the High Street Residence Page 3 during that time period were Lunini and Grayeb.

  Apparently sometime during the first half of the year 2000, Lunini and Grayeb began to have major difficulties in their relationship. On June 27, 2000, after a Council meeting, Grayeb met with Stenson and discussed problems with Lunini. This meeting occurred in the City Hall parking lot, although it might have begun in City Hall itself. Lunini, p. 22, ¶¶ 58, 59. Defendants characterize this meeting as an informal conversation. City Defendants' Reply, p. 5, ¶¶ 54, 55. According to Grayeb, he told Stenson that Lunini was threatening to produce the media on Grayeb's front yard unless Grayeb acceded to Lunini's demands that Grayeb pay him $25,000, grant Lunini a five year service agreement on all properties that Grayeb owned, and give Lunini the property at 510 West High Street.*fn2 Grayeb Dep., p. 83. In addition to these extortion and blackmail threats, Grayeb told Stenson that Lunini had not paid the rent for two months. Id., p. 138. According to Grayeb, Stenson told Grayeb that Grayeb should bring this matter to the attention of the State's Attorney's office for possible blackmail and extortion charges. Id., p. 87.

  According to Stenson, during this June 27, 2000 conversation, Grayeb told him that he had a houseguest and wanted to know the procedures for removing him from the house. Stenson Dep., p. 74. Grayeb does not recall referring to Lunini as a "houseguest." Grayeb Dep., p. 138. Stenson told Grayeb that if Lunini was a Page 4 houseguest, and not paying any rent, then all Grayeb needed to do was to ask Lunini to leave. Stenson Dep., p. 74. If Lunini did not leave, he would be criminally trespassing. Id., p. 74. Stenson told Grayeb that if he wanted further legal opinion, he could contact the State's Attorney. Id., p. 76. According to Stenson, Grayeb never discussed being extorted or blackmailed by Lunini. Id., p. 78.

  According to Lunini, when Grayeb arrived home from the City Council meeting, Grayeb told Lunini that he had spoken with a high ranking police official, and the official told Grayeb to do whatever it took to get Lunini out and not worry about a thing. Lunini, p. 21, ¶ 54, citing Lunini Dep., p. 199. On the next day, June 28, 2000, Grayeb again told Lunini that the police were ready to honor Grayeb's wishes. Id. p. 22, ¶ 55, citing Lunini Dep., p. 200. Grayeb disputes these facts, claiming that there is no support for them other than Lunini's own testimony.

  On June 30, 2000, Lunini went to the High Street Residence at approximately 4:00 a.m., entering the house through the garage. Lunini went to the basement of the residence to retrieve a couple of boxes. He started to pack crystal that he owned because he was preparing to move from the residence. After Lunini finished packing the boxes, he left them in the front parlor.

  Grayeb then came downstairs. Lunini claims that Grayeb was very angry; Grayeb started swearing at Lunini and got into Lunini's face, after which Lunini told Grayeb to back off. Lunini, p. 16, ¶ 1. Lunini claims that Grayeb told Lunini to go ahead and call the police, because they would not do anything to Grayeb because he Page 5 is a councilman. Id., ¶ 2. Grayeb slapped Lunini twice in the face and punched him there once. Id., ¶ 3. Grayeb disputes the fact that this altercation occurred. Grayeb Reply, pp. 2-3. The City Defendants claim that the precise circumstances of the confrontation, except those facts which were known or could accurately be determined by the City Defendants, are immaterial to the City Defendants' Motion. City Defendants' Reply, pp.7-8. Lunini then grabbed a portable telephone, dialed 911, and went outside the house. He told the 911 operator that he had been assaulted or battered, and the assault occurred at the High Street Residence.

  Defendant Harden received a radio call dispatching him to the High Street Residence. At approximately 5:00 — 5:30 a.m., Defendant Kice was also dispatched to the High Street Residence. Before arriving, Harden and Kice stopped their patrol cars next to each other to discuss the fact that they were going to the house where Councilman Grayeb lived. Lunini, p. 17, ¶ 8. When he arrived, Barden parked his squad car in the street, directly in front of the High Street Residence. The officers arrived at about 6:00 a.m., but it was light outside. Id., ¶ 11.

  Grayeb saw the police cars pulling up to the house, and he called the police station and spoke with a dispatcher. Grayeb Dep., p. 118-20. Grayeb asked to have Stenson paged. Grayeb Dep., p. 120. When he spoke with the dispatcher, Grayeb thinks he used the name "Chuck Grayeb;" he does not think that he said that he was a council person. Grayeb Dep., p. 120. He testified that he called Stenson because he found it strange Lunini had entered his house at 4:30 a.m., and he did not know why Page 6 the police were coming to his house at that time in the morning. Grayeb Dep., p. 119. After Grayeb's call, the dispatcher phoned Stenson at his home, awakening Stenson.*fn3 Stenson Dep, p. 42. The dispatcher told Stenson that she had received a call from a council person, that the police were at the council person's house on a domestic call, and the council person wanted to speak with Stenson. Stenson Dep., p. 42. She told Stenson the council person was Grayeb, and she gave him Grayeb's phone number. Stenson Dep., p. 44.

  Meanwhile, outside the house, Barden exited his car and spoke to Lunini. Lunini told him that he and Grayeb had gotten into an argument about Lunini's smoking in the house. Both Barden and Kice were uniformed and had pistols on their hips. Lunini, p 17, ¶ 9. Lunini was in his bathrobe and was holding a telephone. Id., ¶ 10. Lunini also claims that he was "visibly shaken." Id. p. 28, ¶ 92, citing Kice Dep., p. 21. Lunini told Barden that when he was packing boxes, Grayeb had slapped him twice and punched him in the face. Lunini said he and Grayeb were ending a relationship and Lunini was intending to move. Lunini claims that when he made the comment about having a relationship with Grayeb, the officers laughed and made Page 7 facial expressions. Lunini, p. 29, ¶ 100. Lunini told Barden that he would be leaving in a month or two. Lunini Dep., p. 223. Lunini told Barden that Lunini was the owner of the house. Lunini, p. 18, ¶ 21.

  Barden observed that Lunini was bleeding from his lip and had blood on his hand.*fn4 His police report indicated a cut inside Lunini's lip. Lunini, p. 17, ¶ 14. When Kice asked Lunini if he needed an ambulance, Lunini said he did not. Lunini Dep., p. 232. Kice told Lunini that he "should go over and sit on the curb and don't leave." Lunini Dep., p. 229. He felt threatened because Kice and Barden occasionally touched their guns, and there were many policemen there who talked down to Lunini. Lunini Dep., p. 423-24. Lunini phoned his friend Terry Ricci to come over since Officer Barden had been aggressive toward him. Lunini thought he might need someone there to assist him. Lunini Dep., 230-31. It appears Lunini also phoned Mike Gianessi. After speaking to Lunini, Barden and Kice entered the residence. Lunini remained seated on the curb for about an hour. Lunini Dep., p. 229.

  Sometime during this incident, Barden and Kice called for a Sergeant to come to the High Street Residence because the incident involved a councilman, a man of "prestige." Lunini, p. 20, ¶ 41. The Sergeant remained there until Barden and Kice left the scene. Id.

  Upon entering the residence, Barden saw boxes with items in them, which led Page 8 him to believe someone was packing, and he observed items which would indicate Lunini was moving out. Grayeb told Barden that Lunini was in the process of moving out, and they had gotten into an argument about a cigarette Lunini left in the house. Barden Dep., p. 30. When Barden asked Grayeb if he knew that Lunini was injured, Grayeb responded that he did not. Grayeb did not mention a specific date when Lunini was going to move out. Lunini, p. 18, ¶ 26. Barden made a brief visual inspection of Grayeb, and looked at his hands. Barden observed no blood on Grayeb's face. Grayeb did not tell Barden or Stenson that Lunini was to be out of the High Street Residence by June 30, 2000. Lunini, p. 30, ¶¶ 111, 114. While Barden was inside the house, the telephone rang. Grayeb answered it and spoke with Stenson, who apparently was returning Grayeb's earlier call. Barden Dep., p. 30-31.

  Both Stenson and Grayeb testified that their conversation was very short. Grayeb Dep., p. 130, Stenson Dep., p. 46. According to Grayeb, he asked Stenson if Stenson had followed up with the State's Attorney regarding Grayeb's complaint about extortion. Grayeb Dep., pp. 121. 123. Grayeb thought it was possible that the police were at his home because Stenson had reported Lunini's threats of extortion to the State's Attorney, and the police were there to arrest Lunini. Grayeb Dep., p. 130. According to Stenson, during this brief conversation with Grayeb, Grayeb only told him that his "houseguest" had come there earlier in the morning and that the police were currently at the house. Stenson Dep., p. 47. Stenson testified that Grayeb never mentioned blackmail or extortion in relation to his houseguest, and if he had done so, Page 9 Stenson would have communicated it to his officers. Stenson Dep., p. 78.

  At the end of their brief conversation, Stenson told Grayeb he wanted to speak with Harden, and Grayeb handed Barden the phone. According to Grayeb, Stenson and Grayeb did not speak on the phone after that.*fn5 Grayeb Dep., p. 130. Barden told Stenson that Lunini claimed Grayeb had hit him and that Grayeb denied hitting Lunini. Barden also told Stenson that Lunini was moving out. Stenson asked Barden if there was any evidence of violence such as broken furniture, torn clothes, broken glass, or evidence of hand injuries. Barden said there was no physical evidence of any altercation, such as overturned furniture, broken glass, or torn clothes. Stenson Dep., p. 55. Stenson told Barden about his June 27, 2000, conversation with Grayeb, but Stenson did not ask Barden if the individual involved was Lunini. Lunini, p. 23, ¶ 71.

  Stenson asked Barden if he could determine how Lunini had been injured and Barden said that he could not. Stenson Dep., p. 109. Barden could not determine how Lunini was bloodied because there were no witnesses. Barden Dep., p. 39. Barden testified that he did not disbelieve Lunini, but the only evidence was Lunini's word against Grayeb's. Barden Dep., p. 39. From what Barden told Stenson, Stenson could not determine whether a crime had been committed. Stenson Dep., p. 57. Stenson advised Barden that if there was no preponderance of the evidence to make an arrest, Page 10 then he should get both parties' account of what happened and make a police report. Stenson Dep., p. 94.*fn6

  Stenson told Barden to have Lunini leave his gate or garage opener, and to escort Lunini off the property. Barden Dep., p. 38. Stenson instructed Barden that Lunini was to leave the residence and not return unless escorted by the police. After he was finished talking with Stenson, Barden handed the phone back to Grayeb, but Barden does not recall if Grayeb and Stenson had further conversation. Barden Dep., p. 39.

  Once Barden received Stenson's instructions, he considered his investigation over because he was going to follow Stenson's orders. Lunini, p. 24, ¶ 75. In Barden's 14 years as a police officer, he had never received a phone call at a crime scene from the Chief of Police, and he thought Stenson's call was unusual. Lunini, p. 29, ¶ 99. In Kice's 21 years as a police officer, he had never received a phone call at a crime scene from a Chief of Police. Lunini, p. 29, ¶ 98. Barden's initial police report did not mention the conversation with Stenson, and he only added it in a supplemental report after being ordered to do so by Shift Lieutenant Jerry Vogel. Lunini, p. 24, ¶ 80. Lunini did not overhear any conversation Grayeb or Barden had with Stenson. Lunini never spoke with Stenson on the morning of June 30, 2000.

  Barden relayed to Kice his instructions from Stenson. Kice told Lunini to Page 11 remove his garage door opener, gate opener, house key, and other keys. He told Lunini he would be allowed to change into street clothes, and thereafter was to leave the property or otherwise be arrested. Lunini asked Kice why he had to leave and why Grayeb was not being arrested. Lunini, p. 20, ¶ 38. He told Kice that he lived in the High Street Residence. Lunini, p. 18, ¶ 24.

  According to Lunini, Kice then grabbed the back of Lunini's robe behind his right arm and escorted him into the house. Lunini, p. 21, ¶ 46, citing Lunini Dep., p. 238. At least three policemen were present at that time. Id. p. 21, ¶ 43. Barden then grabbed Lunini's arm, walked him up the stairs, took him to a bedroom, and stood in the bedroom while Lunini changed his clothes. Lunini, p. 21, ¶ 46, citing Lunini Dep., p. 238. Defendants dispute the allegation that Barden went upstairs with Lunini, and cite Barden's testimony that he did not go upstairs. City Defendants' Reply, (d/e 157), p. 4, ¶ 46, citing BardenDep., p. 52, 63.*fn7 Lunini claims that Barden would not allow him to take any medication or any other items with him. Lunini Dep., p. 240. Defendants dispute this, again citing the portion of Barden's testimony in which he states he did not go upstairs with Lunini. City Defendants' Reply, p. 4, ¶ 47, citing Barden Dep., p. 52.

  After Lunini had changed and went downstairs, Kice escorted Lunini down the Page 12 driveway and into the garage. Lunini gave Kice the garage door opener, gate opener, and house key. At the time, Lunini had a Cadillac and a Jeep at the residence, and Kice told him he could take the Jeep. Barden went outside and gave Lunini a domestic violence form and explained to him how to obtain an order of protection. Barden went back inside, gave a domestic violence form to Grayeb, and then left the residence.

  After getting the keys from Lunini, Kice got into his squad car and informed dispatch that he was back in service. As Lunini left the premises in his Jeep, he proceeded south on High Street, and was followed by two squad cars. Lunini, p. 21, ¶ 53 and Gianessi Dep., p. 100-01. A third squad car remained at the house. Gianessi Dep., p. 100. Lunini felt that he was placed under arrest by Kice and Barden that morning. Lunini Dep., p. 375. 379. After leaving the High Street Residence, Lunini went to the home of his friend Terry Ricci, at 2007 North Linn, in Peoria. Grayeb had never filed an eviction action in Court against Lunini. Lunini, p. 30, ¶ 112.

  Later that day, June 30, 2000, Lunini went to the Peoria County Courthouse and filed a Petition for Order of Protection. Grayeb, p. 5, ¶ 20. Lunini sought exclusive possession of the High Street Residence. Id., ¶ 21. At 10:50 a.m., the court issued an ex-parte Emergency Order of Protection in favor of Lunini against Grayeb. Id., p. 6, ¶ 22, Grayeb Ex. 2. The order prohibited Grayeb from interfering with Lunini's personal liberty and from physically abusing, stalking or harassing Lunini. The order required Grayeb to stay away from Lunini. The order of protection allowed Lunini Page 13 access to the High Street Residence, only in the presence of Michael Gianessi, in order to remove items of clothing and other personal effects. Id., ¶ 23. The order indicated that the court reserved ruling on Lunini's request for exclusive possession of the property. That order remained in effect until July 14, 2000. Id., ¶ 24.

  Grayeb also sought and received an order of protection, which was entered at 1:40 p.m. June 30, 2000. Grayeb Ex. 6. That order prohibited Lunini from interfering with Grayeb's personal liberty, or physically abusing, harassing or stalking Grayeb. The order granted Grayeb exclusive possession of 510 West High Street, and Lunini was ordered not to enter the house. Lunini was allowed access to the residence only in the presence of the police and Michael Gianessi, for the purpose of removing personal items. Lunini was ordered to stay away from Grayeb.

  On July 14, 2000, Lunini and Grayeb, by agreement, sought and obtained Interim Orders of Protection. Grayeb, p. 6, ¶ 25. By these agreed orders, Lunini was barred from entering or remaining on the property except in the presence of Gianessi and the police, and for the purpose of removing personal possessions. Id., ¶ 26, Grayeb Exs. 3 and 7. This order was in effect until July 28, 2000, on which date an evidentiary hearing was held, and Lunini and Grayeb sought Plenary Orders of Protection. Id. ¶¶ 27, 28. Following the hearing, Lunini and Grayeb agreed to the entry of plenary orders of protection which were to remain in effect for two years, and granted Grayeb exclusive possession of the property. Id., ¶¶ 30-32, Grayeb Exs. 4 and 8. Those agreed orders allowed Lunini access to 510 High Street only at 9:30 a.m. on Page 14 July 31, 2000, and in the presence of police, with no more than four movers. See July 28. 2000. Order of Protection, Grayeb Ex. 8.

  Shortly after June 30, 2000, when Lunini pursued criminal charges against Grayeb, Assistant State's Attorney Steve Patelli told Lunini that they would be unable to take the case to a jury because it was a "homo thing" and man against man. Lunini, pp. 13-14, ¶ ...

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