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June 15, 2005.

NEI'OSHA HAND and ANNA BOWERS Personal Representatives of the Estate of Clayton Harris, Jr., Plaintiffs,

The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge


Before the Court is defendant Officer Jeff Crisel's motion for summary judgment. Also before the Court is the Village of Brooklyn and Police Chief Harold Wilson's joint motion for summary judgment. Plaintiff, Nei'osha Hand, has filed a single response to both motions, and the Village of Brooklyn and Chief Wilson a reply.*fn1 Also before the Court is the Village of Brooklyn and Chief Wilson's motion to strike the affidavits of Michael Baxton, Sr., Richard Hart, Ron Masinelli, Charles Schreiber, and Jeffrey Waters.


  This action arises out of an incident that occurred on February 12, 2003. While attempting to apprehend Clayton Harris, Jr., defendant Jeff Crisel (an officer in the Brooklyn, Illinois police department) allegedly ran over Harris with his vehicle and left him there where he eventually died. On May 7, 2003, plaintiffs Nei'osha Hand and Anna Bowers, personal representatives of Harris' estate, commenced a civil rights action pursuant to 42 U.S.C. § 1983 in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, against the following defendants: the Village of Brooklyn, Illinois, and Harold Wilson, the Chief of Police of Brooklyn, in both his individual and professional capacity (Count II); Officer Jeff Crisel (Counts I, III, IV, V); and the City of Venice, Illinois (Counts VI, VII and VIII). The City of Venice has since been dismissed from this action, as has Count V against Officer Crisel and plaintiff's claim for punitive damages against the Village of Brooklyn and Chief Wilson in Count II.*fn2 Accordingly, the remaining counts allege: a civil rights violation (namely, of the Fourth and Fourteenth Amendments) against Officer Crisel under 42 U.S.C. § 1983 (Count I); a civil rights violation (namely, of the Fourth and Fourteenth Amendments) against the Village of Brooklyn and Chief Wilson (Count II) under 42 U.S.C. § 1983; a violation of rights afforded by 725 ILCS 5/103-2(c) against Officer Crisel (Count III);*fn3 and wrongful death against Officer Crisel (Count IV).

  All defendants now move for summary judgment.


  Rule 56 of the Federal Rules of Civil Procedure states that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating that judgment should be granted as matter of law. See, Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once a motion for summary judgment has been made and properly supported, however, the nonmovant has the burden of setting forth specific facts showing the existence of a genuine issue for trial. See, id. In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable and justifiable inferences in that party's favor. See, Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

  I. Officer Crisel's Motion for Summary Judgment

  Officer Crisel moves for summary judgment on grounds that: his actions were objectively reasonable; he is entitled to immunity under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS § 10/4-102, and that he is entitled to immunity for the good faith performance of his discretionary duties; and that he is entitled to qualified immunity because plaintiff has failed to show that Crisel knew at the time he was attempting to arrest the decedent that Crisel's conduct was unlawful, and further, that the decedent was never "in custody" for purposes of proving the constitutional violation alleged by plaintiffs. Plaintiff asserts, to the contrary, that Officer Crisel's conduct constituted an excessive and unreasonable use of force in the course of the alleged "seizure" of the decedent, in violation of the Fourth Amendment.*fn4

  In order to prove that Officer Crisel violated the decedent's fourth amendment rights, plaintiffs must show: (1) that Officer Crisel's actions constituted a "seizure;" and (2) that the seizure, if one occurred, was "unreasonable." Donovan v. City of Milwaukee, 17 F.3d 944, 948 (7th Cir. 1993). There is no need to reach the second prong of the test, as the Court finds that a seizure did not occur.

[A] Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied.
Id. (citing Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 1381 (1989)) (emphasis in original).

  Here, plaintiff attempts to argue that the decedent was "seized" within the meaning of the Fourth Amendment in that Officer Crisel intentionally used his vehicle to pin the fleeing suspect. However, plaintiff has presented no evidence to support this theory; rather, the overwhelming evidence in the record shows that Officer Crisel did not intend to hit or pin the decedent under the fence with his vehicle in order to detain him.

  It is undisputed that Officer Crisel had probable cause to make the traffic stop. It is also undisputed that when Officer Crisel called in the decedent's driver's license information, he was informed that the decedent was wanted on a warrant or warrants, and that when Officer Crisel approached the decedent to arrest him, the decedent fled from Officer Crisel on foot and ran down Illinois Route 3 and onto Granville Street in the City of Venice, Illinois. According to Officer Crisel, he followed in his squad car, lost sight of the decedent on Granville Street, and made the decision to turn into an alley off Granville Street to the left because there is an open field beyond that alley. (See, Doc. 127, Ex. 5 at 111). As he approached that alley, he scanned the opposite alley to the right to see if the decedent had run that way, saw nothing, and then turned left into the alley. (See, id. at 111-12). He testified that as he turned left, he did not see the decedent. (See, id. at 113). He ran up what felt like a little embankment, hit a wood fence on the right side of the alley, lost control of his vehicle, stepped on the brakes but could not stop, and veered into a metal fence on the left side of the alley. (See, id. at 116-22). It was only after the vehicle came to a stop that Officer Crisel heard the decedent screaming and realized that the vehicle had pinned the decedent under the metal fence. (See, id. at 123-24).

  In an attempt to raise an issue of material fact, plaintiff points to apparent inconsistencies in Officer Crisel's statement to the Illinois State Police on the date of the accident (see, Doc. 115, Ex. 8) and his deposition testimony, and a signed but unsworn second statement given to the investigating officer at a later date (which was presented to a grand jury while Officer Crisel simultaneously asserted his fifth amendment rights and refused to appear before that grand jury). (See, Doc. 115, Ex. 9 and Doc. 127, Ex. 13 at 67-70). That second statement was given after the statement of an eyewitness, Annie R. Severs, was obtained, in which Severs declared that the decedent jumped a fence on Granville and was not running down the alley. (See, Doc. 115, Ex. 5). Officer Crisel's second statement asserts that he did in fact remember seeing a man running in the alley, did remember seeing the man in front of his car as he was losing control of his car, and did remember seeing the man attempt to hurdle the metal fence just before he ran into that fence. (See, Doc. 115, Ex. 9). Plaintiff claims that Officer Crisel's attempt to change his story so as to account for Severs' statement allows one to draw the inference that he is a liar and that his conduct was intentional. Initially, the Court notes that there is no evidence that Officer Crisel saw or was made aware of Severs' statement. Moreover, these apparent inconsistencies are not dispositive proof of any attempt of the part of Officer Crisel to obfuscate the truth, nor of plaintiff's assertion that Officer Crisel intentionally ran down the decedent. The Investigative Report dated February 12, 2003 states that: "It should be noted that during the entire interview Crisel was extremely upset over the death of Harris. At times he cried and shook uncontrollably. . . . Crisel was very uncertain of the final moments of his pursuit of Harris stating everything happened so fast." (Doc. 115, Ex. 8 at pp. 1-2). According to the Traffic Crash Investigation Report, prepared by Trooper Dwayne Moore, the steering maneuver Officer Crisel made to avoid the wood fence directed his vehicle toward the metal face under which the decedent was pinned. (See, Doc. 99 at p. 6). The report concludes that the primary cause of the crash was Officer Crisel's failure to drive in a safe manner as he entered the alley. (See, id.). The report further states:
The solid construction of the metal fence made it impossible for Crisel to see through the fence while traveling on Granville. The height of the fence compared to the level of the roadway and the level of the yard where Harris was located made it impossible for Crisel to see Harris by looking over the fence as he traveled on Granville. Although Crisel may have been able to see Harris after entering the alley, it appears he didn't ...

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