The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
On September 3, 2004, Christopher DeSalvo filed a complaint in
the Circuit Court of Madison County, Illinois, against
Collinsville Police Officer Mark Krug and the City of
Collinsville, Illinois. DeSalvo's complaint asserts claims
against both Collinsville and Krug for depriving him of his
constitutional rights in violation of 42 U.S.C. § 1983. On
October 7, 2004, Defendants timely removed the action to this
Court, pursuant to 28 U.S.C. §§ 1331 and 1441, based on this
Court's federal question jurisdiction. Now pending before this
Court are summary judgment motions filed by Defendant Krug and
On September 4, 2003, DeSalvo traveled to Collinsville,
Illinois for the annual "Monster MOPAR" weekend at Gateway
International Raceway (DeSalvo Deposition, pp. 20-21). On
September 6, at approximately 5:00 p.m., Desalvo returned from
the car show to the Collinsville Holiday Inn, where he was
registered as a guest (DeSalvo Dep. p. 26). Upon his return,
DeSalvo ate dinner and then hung out in the Holiday Inn parking lot, where
approximately 100-150 people were gathered (DeSalvo Dep. p. 26).
In the parking lot, members of the crowd were doing "burn outs,"
spinning the tires of their cars until they produced smoke
(DeSalvo Dep. p. 27). Between 5:00 p.m. and 8:00 p.m., DeSalvo
consumed three beers (DeSalvo Dep. p. 25).
At approximately 6:00 p.m., Officer Krug was dispatched to the
Holiday Inn due to a complaint of vehicles burning tires in the
back parking lot (Krug Dep. pp. 8-11, Fingerhut Dep. p. 8). Krug
responded to the call and drove through the parking lot where he
observed the crowd of people (Krug Dep. p. 8-11). DeSalvo
observed Krug driving through the parking lot at that time but
did not see any other officers in the vicinity until the time of
his arrest (DeSalvo Dep. p. 29).
At approximately 9:30 p.m., Krug returned to the parking lot
and observed that a crowd of approximately 150 people was still
congregated there (Krug Dep. p. 13). At that time, Krug ordered
the crowd to disperse and radioed for assistance (Krug. Dep. p.
25). Responding to his order, the crowd began dispersing (DeSalvo
Dep. p. 36).
As the crowd was disbursing, Krug approached an older man who
had remained in the lot and was not immediately leaving (Krug
Dep. p. 17). Krug asked the man for identification (Krug. Dep. p.
17). In response, the man turned to leave the parking lot and was
walking back toward the Holiday Inn, where he had informed Krug
that he had a room (Krug. Dep. p. 17). Rather than allowing the
man to return to his room, Krug grabbed him by the arm and again
requested the man's identification (Krug. Dep. p. 17). In
compliance with Krug's request, the man reached into his wallet
and produced identification (Krug's Dep. p. 20).
Meanwhile, DeSalvo, who was returning to his hotel room,
noticed Krug and the older man's interaction (DeSalvo Dep. pp.
41-42). As DeSalvo passed the two men, he questioned Krug as to why he was arresting someone who, in DeSalvo's opinion, had
done nothing illegal (DeSalvo Dep. pp. 41-42). DeSalvo told Krug
that "nobody is doing anything illegal, we are having a good
time, leave us all alone" (Krug Dep. p. 23). Krug replied that if
DeSalvo didn't return to his room, he would be arrested for
"obstructing" (Krug. Dep. p. 24). DeSalvo countered that he
hadn't done anything wrong (DeSalvo Dep. p. 42). Krug then told
DeSalvo to place his hands behind his back, handcuffed DeSalvo,
and pushed him up against a squad car (DeSalvo Dep. pp. 41-42).
With his hands handcuffed behind his back, DeSalvo turned to
Krug and asked him why he was being arrested (DeSalvo Dep. p. 43,
Krug Dep. p. 24). Krug responded that he didn't have to tell
DeSalvo why he was being arrested and ordered him to get into the
car (DeSalvo Dep. p. 43). DeSalvo again complained to Krug that
he had done nothing wrong and asked him again why he was being
arrested (DeSalvo Dep. p. 43). In response, Krug removed his
taser from its holster and test fired the taser in the air near
DeSalvo's head, telling DeSalvo that he would "pull the trigger"
if DeSalvo did not get into the squad car (DeSalvo Dep. p. 44,
Krug Dep. p. 30). Immediately thereafter,*fn1 Krug placed
the taser to DeSalvo's neck and activated it, shocking DeSalvo
(Krug Dep. pp. 30-31). As DeSalvo turned toward the car, Krug
placed the taser to DeSalvo's forehead and threatened to tase him
again if he did not get in the car (DeSalvo Dep. p. 45). Before
DeSalvo entered the car, Krug again activated the taser near or
against DeSalvo's forehead (Exhibit H to Doc. 27).
Notably, the interaction between Krug and DeSalvo took place
next to a police squad car that was part of a group of at least
four squad cars (id.). While DeSalvo and Krug were interacting, a male and a female officer stood immediately next
to the two men, and at least two other officers were within
twenty feet of the two men (id.). Before being tased, DeSalvo
stood motionless at the door of the squad car, showing no obvious
signs of aggression or physical resistance (id.).
DeSalvo's September 3, 2004, complaint asserts two separate
claims, one against Krug and one against the City of
Collinsville. The Court considers each in turn.
(1) DeSalvo's Claims Against Krug:
In Count I, DeSalvo claims that Krug, while working as a police
officer for the City of Collinsville, deprived him of his