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DESALVO v. CITY OF COLLINSVILLE

October 7, 2005.

CHRISTOPER DESALVO, Plaintiff,
v.
CITY OF COLLINSVILLE, ILLINOIS, and MARK KRUG, Defendants.



The opinion of the court was delivered by: MICHAEL REAGAN, District Judge

MEMORANDUM and ORDER

A. Procedural History

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 Defendant Collinsville.

  B. Factual Background

  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.).

  C. Analysis

  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 constitutional ...


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