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THURMAN v. HOMEWOOD POLICE OFFICERS BOEREMA

June 2, 2005.

CLIFTON THURMAN, Plaintiff,
v.
HOMEWOOD POLICE OFFICERS BOEREMA, WIEST, MISNER and STRUNK, CITY OF HOMEWOOD, and GERALD ZANSITIS, Defendants.



The opinion of the court was delivered by: JAMES MORAN, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Clifton Thurman brought this action against defendants Harry James Boerema, Curt Wiest, Robert Misner and Kenneth Strunk (collectively, "officers"), the Village of Homewood (Homewood), and Gerald Zansitis (Zansitis), alleging civil rights violations under 42 U.S.C. § 1983 and defamation under Illinois law. All defendants move for summary judgment, with Zansitis arguing for dismissal due to lack of subject matter jurisdiction. For the following reasons, defendants' motions are granted.

BACKGROUND

  The following facts are taken from the parties' statements submitted pursuant to Local Rule 56.1 and are, for purposes of the summary judgment motion, viewed in the light most favorable to plaintiff. On November 28, 2004, plaintiff, a Chicago police officer, was shopping at a Home Depot store in Homewood, Illinois. Plaintiff, wearing street clothes, was off-duty at the time but had with him his service revolver, which was sleeved in a holster tucked into his waistband, near the left pocket on the backside of his jeans. A Home Depot employee observed the gun and promptly called Homewood police. Officers Boerma and Misner soon arrived and confronted plaintiff, who told them that he had a gun, a star around his neck, and police credentials in his pocket. The officers then removed the gun and attempted to ascertain whether or not plaintiff was actually a police officer who was entitled to carry a gun.

  The parties dispute aspects of the officers' investigation, including its duration. Plaintiff claims that police harassed him by saying that he was not really a police officer and threatened him with jail during a period lasting between 20 to 25 minutes. Plaintiff also says that when the officers asked him where he worked, he promptly responded with the address of his assigned station. In contrast, the officers state that plaintiff only said "21st district," which led a Homewood dispatcher who the officers contacted to call District 21 of the state police, which held no records regarding plaintiff's employment. The officers were not able to verify plaintiff's status as an officer until he volunteered the correct phone number for his assigned station. Defendants also point out that plaintiff's firearms registration card was manipulated — its laminate was upturned and some information was blocked out with white-out and written over with pencil. Defendants further state that the entire incident lasted only 14 minutes and that plaintiff was generally uncooperative.

  Plaintiff first alleges that the detention was unreasonable, in violation of his Fourth Amendment rights. Flowing from that claim, plaintiff contends that Homewood is liable because of its alleged failure to train its officers to identify Chicago police officers. He also claims that the officers and Zansitis retaliated against him by defaming him in a complaint that they submitted to the Chicago Police Department. In response, the officers argue that the detention was not unreasonable. Homewood contends it is not liable because the requirements for municipal liability are absent. The officers and Zansitis argue that the court lacks jurisdiction to hear the defamation claim, and that even if jurisdiction exists they benefit from immunity. DISCUSSION

  The Fourth Amendment safeguards "against unreasonable searches and seizures." U.S. CONST. amend. IV. Plaintiff's argument rests not on the initial stop — which he does not challenge as invalid — but, instead, on the subsequent investigatory detention. See Illinois v. Caballes, 125 S. Ct. 834, 846 (2005) ("a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution."). Plaintiff contends that the identification he provided, specifically his badge, was sufficient and should have confirmed to the officers that he was a Chicago police officer who was entitled to carry a handgun. Thus the issue is whether the officer's investigation was reasonable.

  When evaluating the reasonableness of the investigation, the court considers "`whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain'" plaintiff. Leaf v. Shelnutt, 400 F.3d 1070, 1092 (7th Cir. 2005) (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)). The length of a stop may determine its intrusiveness, but no bright-line rule gauges how long is too long. United States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994). Examining whether the officers acted reasonably "involves a consideration of `the totality of circumstances known to the officers at the time of the stop.'" United States v. Swift, 220 F.3d 502, 506 (7th Cir. 2000) (quoting United States v. Quinn, 83 F.3d 917, 921 (7th Cir. 1996)).

  In light of all the circumstances, the officers acted reasonably when they sought additional identification to confirm that plaintiff was a police officer. When the officers approached plaintiff they asked him if he had a weapon, and he responded affirmatively, and also said that he had a star around his neck and his credentials in his pocket (plf. dep. 58). Plaintiff believed that the star was sufficient identification (see plf. dep. 59, "when I said I had a star around my neck, I meant I'm a police officer."). While a badge may adequately identify its holder as a police officer in many situations, in this case the officers encountered a badge from a different jurisdiction. Further, even though Officer Boerema admitted that he had seen a Chicago police badge on prior occasions, he also noted that badges can be acquired from unofficial sources (Boerema dep. 7) — a fact plaintiff also acknowledged (plf. dep. 97). Under these circumstances the officers acted reasonably when they sought additional identification from plaintiff. See United States v. Scheets, 188 F.3d 829, 838 (7th Cir. 1999).

  In addition to his badge, plaintiff produced several identification cards. He gave the officers a visibly altered firearms registration card. He also provided a card issued by the Chicago Police Department that identified plaintiff as an employee, but not an officer. Neither of these cards unequivocally showed that plaintiff was a police officer; moreover, the altered firearms registration card supplied the officers with additional cause to pursue their investigation. Similarly, plaintiff's responses to the officers' questions heightened, rather than diminished their suspicions. First, plaintiff stated that he did not have a commission card, which is an identification card issued to suburban police officers and firefighters. Second, plaintiff denied the existence of public housing buildings near the 21st District station house, when Officer Weist asked him to identify those buildings (Weist formerly worked with the Chicago Housing Authority). The officers did not know that commission cards were not issued to Chicago police officers, and Officer Weist was unaware that the public housing buildings had been recently razed. Had the officers known that plaintiff would not have a commission card, and if Officer Weist knew of the buildings' destruction, then these questions would have unnecessarily delayed the investigation, perhaps in an unreasonable manner. Instead, the officers posed those questions to educe information that would expedite their investigation, rather than prolong plaintiff's detention. Nothing in the record shows that the officer's conduct was not reasonably related to verifying plaintiff's employment. See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 124 S. Ct. 2451, 2458 (2004) (quoting Sharpe, 470 U.S. at 682) ("The officer's action must be `justified at its inception, and . . . reasonably related in scope to the circumstances which justified the interference in the first place.'").

  The officers then attempted to contact the "21st District," but the dispatcher wrongly assumed that this referred to the Illinois State Police, who denied having plaintiff in its employ. It was not until plaintiff gave officers the phone number for the 21st District that they were able to confirm his status as a police officer.*fn1 There is no indication of any subsequent delay in returning to plaintiff his gun and identification. In other words, the investigation terminated immediately upon verification of plaintiff's employment. See United States v. Childs, 277 F.3d 947, 952 (7th Cir. 2002) ("A person stopped on reasonable suspicion must be released as soon as the officers have assured themselves that no skullduggery is afoot.").

  The officers were confronted with a potentially dangerous situation: a man with a gun in a public venue. The officers were diligent, not dilatory, when they attempted to verify plaintiff's identity. The duration of the investigation was prolonged not by their unreasonable behavior, but by information that heightened rather than alleviated their suspicions. In sum, there are no facts in the record that create a dispute as to the reasonableness of the officers' conduct. Plaintiff has failed to create a factual dispute regarding his alleged constitutional injury, and his remaining claims quickly fall because they balance on that alleged violation.

  Plaintiff's claim against Homewood fails absent a constitutional violation. One may sue local governing bodies under section 1983 when his or her constitutional injury is caused by the local government's policies or customs. Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). A constitutional violation is a predicate to municipal liability, and because plaintiff endured no constitutional injury Homewood is not liable under Monell. See Contreras v. City of Chicago, 119 F.3d 1286, 1294 (7th Cir. 1997) (municipal liability is "secondary to the basic issue of whether a constitutional guarantee has been violated."); Windle v. City of Marion, 321 F.3d 658, 663 (7th Cir. 2003) (must prove individual officers are liable in order to recover from municipality on a failure-to-train theory).

  Homewood faces no liability even if its officers violated plaintiff's rights. A municipality may be held liable under section 1983 if its policies or customs resulted in a constitutional violation (McGreal v. Ostrov, 368 F.3d 657, 684 (7th Cir. 2004)), but Homewood had neither a policy nor a widespread practice for identifying Chicago police officers. Homewood's failure to train its officers "may serve as the basis for § 1983 liability only where [it] amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). A municipality demonstrates deliberate indifference "when it fails to train its employees to handle a recurring situation that presents an obvious potential for a constitutional violation and this failure to train ...


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