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June 28, 2004.


The opinion of the court was delivered by: MATHEW KENNELLY, District Judge


On May 7, 2000, plaintiff Joshua Berryhill was shot by defendant Daniel Spychalski, an officer with the Streamwood Police Department, at a gas station in Streamwood. Berryhill has sued Spychalski and the Village of Streamwood under 42 U.S.C. § 1983, alleging that Spychalski used excessive force and that he did so pursuant to a policy or practice of the Village. The defendants have moved for summary judgment, and Berryhill has moved to strike a proposed expert witness offered by the defendants. For the reasons stated below, the Court grants summary judgment in favor of the Village but denies summary judgment as to the claim against Spychalski, and grants plaintiffs' motion to strike the proposed expert.


  The two sides of this case present sharply different versions of the facts that unfolded on May 7, 2000. In the present context, the Court must avoid the temptation to decide which party's version is most likely true, as we are required to view the facts in the light most favorable to the plaintiff and determine whether defendants are entitled to judgment as a matter of law. See, e.g., Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003); Fed.R.Civ.P. 56(c).

  Viewed in the light most favorable to Berryhill, the facts are as follows. On the evening of May 7, 2000, Berryhill, who at the time was 25 years old, went to his father's house after drinking alcohol for several hours and picked up his father's handgun, determined to commit suicide. He drove to Thornton's Gas Station in Streamwood, arriving around 11:00 p.m. From a pay telephone outside the gas station, Berryhill called the Elmwood Park Police Department and asked to speak with Deputy Chief George Bertucci, the father of a childhood friend of Berryhill. Berryhill told the police dispatcher where he was, saying he had a gun and was going to kill himself. He repeatedly asked where Bertucci was and was told that Bertucci was on his way. At some point while on the telephone, Berryhill got frustrated, told the dispatcher he was not playing games, and fired a round into the ground next to the pay phone. He told the dispatcher the next shot would be at his head.

  Bertucci was reached at home and drove to the gas station along with Elmwood Park Police Commander William Rollett. While Bertucci was en route, Berryhill was patched through to Bertucci's telephone, and he told Bertucci he had the gun to his head and was going to kill himself. Rollett contacted the Streamwood Police Department and advised that there was a man with a gun at the Thornton Gas Station.

  After Bertucci and Rollett arrived in the area of the gas station, they observed Berryhill near the pay phone. He had a gun pointed to his temple and was walking around the gas station area. Bertucci tried to reason with Berryhill and they spoke for a period of time. He did not point his gun at Bertucci, Rollett, or any of the Streamwood police officers who were at the scene at any time. The Streamwood officers who had been summoned to the scene remained concealed from Berryhill's view, and he says he was unaware of their presence.

  At some point during the incident, Berryhill fired a shot into a berm in a direction away from Bertucci. Neither Bertucci nor the Streamwood officers who were on the scene took no action against Berryhill after this shot. About five to ten minutes later, Berryhill's gun discharged again. Taken in the light most favorable to Berryhill, the evidence reflects that he was facing away from Bertucci when the gun discharged. Berryhill testified that his arm brushed against his leg, and the gun discharged accidentally, in a southerly direction, away from Bertucci. The shot was in the general direction of a bank building and a condominium complex that were at some unspecified distance. Berryhill says he told Bertucci it was an accident.

  A couple of seconds after Berryhill's gun discharged, Streamwood officer Spychalski shot Berryhill in the leg with his rifle, knocking him to the ground. Numerous officers rushed to where Berryhill was lying, jumped on top of him, stood on his leg where he had been shot, and handcuffed him. One of the officers had a police dog, who bit off a portion of Berryhill's ear. When paramedics arrived, they required the officers to remove the handcuffs.

  Berryhill was ultimately charged with two counts of attempted first degree murder and two counts of aggravated discharge of a weapon. He was acquitted by Cook County Circuit Judge Thomas Fecarotta, Jr. on August 6, 2001 after a bench trial. At the trial, Bertucci testified that the shots were fired in a direction away from him and that he never feared for his own safety. Spychalski, who was armed with a rifle, testified at his deposition that he could hear Berryhill telling Bertucci that he wanted to kill himself. Eventually Spychalski moved to a position that gave him a line of sight to Berryhill that was unobstructed by the gas pumps, as he was concerned about causing an explosion if he had to shoot. He was told to stay out of sight. Spychalski claimed he saw Berryhill point his gun directly at the Elmwood Park officers and fire, and that when he saw this he shot Berryhill to protect the Elmwood Park officers. A jury might well accept Spychalski's version or at least his perception of the events. But because Spychalski's version is disputed — both Berryhill and Bertucci have testified that Berryhill never pointed his gun at the officers — the Court cannot rely on that version for purposes of the present motion for summary judgment.

  A police officer's use of deadly force constitutes a "seizure" within the meaning of the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7 (1985). The reasonableness of the officer's use of force is evaluated by determining whether it was objectively reasonable in light of the facts and circumstances confronting the officer, without regard to the officer's underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 397 (1989). "An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional." Id.

  The "particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396. An officer is entitled to use deadly force against a suspect if he has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others. Garner, 471 U.S. at 11.

  As indicated earlier, for purposes of the present motion for summary judgment, the Court is required to view the facts in the light most favorable to Berryhill. Viewed through that lens, the situation confronting Spychalski was that of a suicidal man with a gun who did not threaten anyone other than himself and who did not point or fire the gun at or in the direction of anyone, but did fire it once into a berm and once toward some buildings in the distance. A jury that found the facts as such could reasonably determine that a reasonable officer would not have found Berryhill to pose a threat to anyone other than himself*fn1 and thus could reasonably find in Berryhill's favor. Defendants cite no cases that say deadly force may be used against a suspect merely because he is wielding a firearm, or merely because he has discharged the firearm so long as the discharge does not suggest that anyone is in danger. Rather, as indicated earlier, the law requires an objectively reasonable basis to believe that the suspect is posing a threat of serious physical harm to others. As we have indicated, a jury might well determine that a proper basis existed justifying Spychalski in shooting Berryhill, but given the limitations placed on the Court in the present context, Spychalski is not entitled to summary judgment.

  Spychalski argues that even if summary judgment on the Fourth Amendment claim is inappropriate, he is nonetheless entitled to qualified immunity. Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from liability for civil damages if their conduct did not violate a clearly established right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The issue of qualified immunity is a question of law for the court, though it ...

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