United States District Court, S.D. Illinois
October 7, 2005.
CHRISTOPER DESALVO, Plaintiff,
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
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.).
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 rights in violation of 42 U.S.C. § 1983.
APPLICABLE LEGAL PRINCIPLES
Section 1983 provides a federal cause of action for violation
of an individual's constitutional civil rights under color of
state law. The prima facie requirements for a § 1983 cause of
action differ depending upon the manner in which the plaintiff
alleges his constitutional rights were violated. DeSalvo alleges
that Krug violated his constitutional rights in two ways: (a)
Krug arrested him without cause or provocation, thereby depriving
him of his right to be free from unreasonable search and seizure
of his person, and (b) Krug used excessive force against him
during the course of his arrest, thereby depriving him of his
constitutional right to be free from cruel and unusual
Unlawful Arrest Theory
To establish a prima facie case in a § 1983 action based on
an officer's unlawful arrest, a plaintiff must prove by a
preponderance of the evidence that his arrest was carried out in
the absence of probable cause. See Schertz v. Waupaca County,
875 F.2d 578, 582 (7th Cir. 1989) (the existence of probable cause for an arrest is an absolute bar to
a 1983 claim for unlawful arrest). The probable cause standard
is incapable of precise definition, because it deals with
probabilities and depends upon the totality of the circumstances.
Maryland v. Pringle, 540 U.S. 366, 371 (2003), citing
Brinegar v. United States, 338 U.S. 160, 175 (1949). However,
the substance of all the definitions of probable cause is a
reasonable ground for belief of guilt, and the belief must be
particularized with respect to the person to be searched or
seized. Ybarra v. Illinois, 444 U.S. 85, 91 (1979).
Excessive Force Theory
To establish a prima facie case in a § 1983 action based on a
police officer's use of excessive force, a plaintiff must prove
by a preponderance of the evidence that the force used was so
unreasonable in light of the circumstances of the arrest as to
violate the constitutional rights of the plaintiff to be free
from such treatment. See Graham v. Connor, 490 U.S. 386
(1989); Deering v. Reich, 183 F.3d 645 (7th Cir. 1999).
Determining whether the force used by an officer is
constitutionally "reasonable" requires a balancing of the nature
and quality of the intrusion on the individual's constitutional
interests against the countervailing government interests at
stake. Graham, 490 U.S. at 396. This demands careful
attention to the facts and circumstances of the particular case,
including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting
to evade arrest by flight. Id.
KRUG'S ARGUMENTS FOR SUMMARY JUDGMENT
In moving for summary judgment, Krug asserts (a) that he is
shielded from liability under the doctrine of qualified immunity,
and (b) alternatively, that summary judgment is appropriate because no genuine issues of material fact remain, and Krug is
entitled to judgment as a matter of law.
Qualified Immunity Analysis
The doctrine of qualified immunity is an "entitlement [for
certain government officials] not to stand trial or face the
other burdens of litigation" Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). As such, it is important for a Court to resolve
any immunity questions at the earliest possible stage in
litigation. Hunter v. Bryant, 502 U.S. 224, 227 (1991).
Although the respective analyses are similar, the requisite
analysis to determine qualified immunity is not so intertwined
with the constitutional violation issues so as to be treated as
one question. Saucier v. Katz, 553 U.S. 194, 197 (2001).
Accordingly, before considering Krug's second argument for
summary judgment, this Court must first conduct a separate
analysis of Krug's qualified immunity assertion.
"A court required to rule upon the qualified immunity issue
must first consider whether, [t]aken in the light most favorable
to the party asserting the injury . . ., the facts alleged show
the officer's conduct violated a constitutional right."
Saucier, 553 U.S. at 201. Taking the facts in this case in
the light most favorable to DeSalvo, the Court finds that Krug's
actions violated DeSalvo's constitutional rights.
DeSalvo asserts that he was arrested by Krug simply for
inquiring as to why another man was being arrested. In light of
the fact that Krug himself has admitted that the older man was
attempting to leave the parking lot immediately before being
detained by Krug, DeSalvo's questions seem altogether reasonable.
And even if DeSalvo's questioning of Krug could be considered
unreasonable, DeSalvo's inquiries nonetheless certainly were not
sufficient to provide Officer Krug with a "reasonable belief of guilt, particularized [towards
Desalvo]." Ybarra, 444 U.S. at 91. Lacking probable cause,
Krug's arrest of DeSalvo would be a violation of his
constitutional right to be free from unreasonable search and
seizure of his person under the Fourth and Fourteenth Amendments
to the United States Constitution.
Moreover, DeSalvo asserts that Krug tased him on his neck
solely because he persisted in asking why he was being arrested.
He further maintains that he was not physically resisting or
struggling with Krug in any manner. Assuming that these
assertions are true, Krug's use of a taser on DeSalvo constituted
excessive force that deprived DeSalvo of his constitutional right
to be free from cruel and unusual punishment under the Eighth and
Fourteenth Amendments to the Constitution.
If, as in this case, a violation of a plaintiff's
constitutional rights can be made out on a favorable view of the
plaintiff's submissions, the next step in a qualified immunity
analysis is to determine whether the rights were "clearly
established." Saucier, 533 U.S. at 201. This inquiry "must be
undertaken in light of the specific context of the case, not as a
broad general proposition." Id. "The right the official is
alleged to have violated must have been `clearly established' in
a . . . particularized and relevant sense: [t]he contours of the
right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Id. at
202, citing Anderson v. Creighton, 483 U.S. 635, 640 (1987).
"The relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation
he confronted. Saucier, 533 U.S. at 202.
The right of a citizen to be free from a search or seizure in
the absence of probable cause is a clear and long-established
right. The Court does not seriously entertain an argument that a
reasonable police officer would be unaware of this right, nor
does Krug propose such an argument. Krug does argue, however, that a citizen's right to be free
from being tased is not a clearly established right, in that
there is no clearly analogous case specifically establishing a
right to be free from tasing. While this may or may not be the
case, this Court finds that Krug's argument implicitly asserts a
definition of DeSalvo's right that exceeds the appropriate level
of specificity. See Wilson v. Layne, 526 U.S. 603, 615 (1999)
(in a qualified immunity analysis "the right allegedly violated
must be defined at the appropriate level of specificity before a
court can determine if it was clearly established").
DeSalvo's right in this case, defined at an appropriate level
of specificity, poses to the Court a broader question: does a
restrained person have a right to be free from a significantly
violent level of force if he is, while perhaps not fully
compliant with an officer's orders, acting in an otherwise
peaceable manner? In answering this question, the Court finds
the fact that Krug used a taser to inflict pain upon DeSalvo,
rather than some other weapon, is of diminished importance. A
taser is capable of inflicting a great deal of pain upon a person
shocking, burning, and even rendering numb its target and is,
in this sense, little different than a nightstick, mace, or any
other weapon that a police officer might use against an
A reasonable officer in the situation Krug confronted would
have known that it would be unlawful to deliver a swift blow with
a night stick to the back of DeSalvo's neck as he stood
handcuffed at the rear of the squad car. A reasonable officer
would also have known that spraying mace in the face of DeSalvo
under the circumstances would be unlawful. So too, then, this
Court finds, a reasonable officer in Krug's position would have
known that it would be unlawful to tase DeSalvo under the
circumstances of this case. Accordingly, the Court concludes that
the rights of DeSalvo that Krug allegedly violated were "clearly
established" at the time of DeSalvo's arrest. Therefore, the Court rejects Krug's qualified immunity argument.
Summary Judgment Analysis
Krug further argues that even if he is not entitled to
qualified immunity, summary judgment is nonetheless proper in
this case because there is no genuine issue as to any material
fact and Krug is entitled to judgment as a matter of law.
Summary judgment is proper if the pleadings, depositions,
interrogatory answers, admissions, and affidavits leave no
genuine issue of material fact, and the moving party is entitled
to judgment as a matter of law. FED. R. CIV. P. 56(c). The
moving party bears the burden of establishing both the absence of
fact issues and entitlement to judgment as a matter of law.
Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461
(7th Cir. 1997).
In determining whether a genuine issue of material fact exists,
the Court reviews the record in the light most favorable to the
non-moving party and makes all reasonable inferences in the
non-movant's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); Ulichny v. Merton Community School Dist.,
249 F.3d 686, 699 (7th Cir. 2001); Miranda v. Wisconsin
Power & Light Company, 91 F.3d 1011, 1014 (7th Cir. 1996).
Considering first DeSalvo's excessive force allegation, this
Court notes again that the relevant inquiry is whether the amount
of force used by an officer was constitutionally "reasonable."
Graham, 490 U.S. at 396. Answering this question requires a
balancing of the nature and quality of the intrusion on the
individual's constitutional interests against the countervailing
government interests at stake. Graham, 490 U.S. at 396. The
evaluation of reasonableness, then, is clearly a question of fact
one that must be submitted to a jury to decide unless this
Court is convinced that the record as a whole "could not lead a
rational trier of fact to find for [DeSalvo]." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Viewing the facts and drawing all reasonable inferences in favor
of DeSalvo, this Court is not convinced that no reasonable jury
could conclude that Krug used excessive force against DeSalvo.
According to DeSalvo's account of the underlying incident,
DeSalvo simply inquired of Krug, as the crowd was disbursing, as
to why an older man was being arrested. In response, Krug bent
DeSalvo's arm behind his back, pushed DeSalvo into a squad car
chest first, and hand-cuffed him. When Desalvo objected to being
arrested, Krug tased him with a 50,000 volt taser with little, if
any, warning. In addition to DeSalvo's own account of the
incident, DeSalvo has presented testimony from a bystander
asserting that DeSalvo did not swing at Krug, try to run away, or
physically threaten anyone (Carpenter Dep. pp. 12-13). The
amateur video of the incident (Exhibit H to Doc. 27) further
reveals that DeSalvo was not physically resisting Krug prior to
being tased, and at least three other officers were within five
feet of DeSalvo.
The Court finds that a reasonable jury could find that Krug
used excessive force against DeSalvo. Accordingly, summary
judgment as to Krug is not appropriate.*fn2 The Court
DENIES Krug's motion for summary judgment (Doc. 13).
(2) DeSalvo's Claim Against Collinsville
In Count II of DeSalvo's complaint, he claims that the City of
Collinsville, Illinois, is liable for the actions of Krug.
Specifically, DeSalvo argues that Collinsville's failure to train
its officers as to crowd control and taser use amounts to
"deliberate indifference" towards the constitutional rights of
its citizens that constitutes a "policy or custom" under which
Krug was acting. APPLICABLE LEGAL PRINCIPLES
Inadequacy of police training may serve as a basis for § 1983
liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come
into contact. City of Canton, Ohio v. Harris et al.,
489 U.S. 378, 388 (1989). "Only where a municipality's failure to train
its employees in a relevant respect evidences a `deliberate
indifference' to the rights of its inhabitants can such a
shortcoming be properly thought of as a city `policy or custom'
that is actionable under § 1983." Id. Deliberate indifference
requires a showing of more than negligence or even gross
negligence. Id. at 388.
In resolving the issue of a city's liability, the focus must be
on adequacy of the training program in relation to the tasks the
particular officers must perform. Id. at 390. That a
particular officer may be unsatisfactorily trained will not alone
suffice to fasten liability on the city. Id. at 391.
Moreover, for liability to attach in this circumstance, the
identified deficiency in a city's training program must be
closely related to the ultimate injury. Id. at 391.
Summary Judgment Analysis
As noted, summary judgment is proper if the pleadings,
depositions, interrogatory answers, admissions, and affidavits
leave no genuine issue of material fact, and the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
Furthermore, because the primary purpose of summary judgment is
to isolate and dispose of factually unsupported claims, the
non-movant may not rest on the pleadings but must respond, with
affidavits or otherwise, setting forth specific facts showing
that there is a genuine issue for trial. Oest v. IDOC,
240 F.3d 605, 610 (7th Cir. 2001); Moore v. J.B. Hunt
Transport, Inc., 221 F.3d 944, 950 (7th Cir. 2000).
DeSalvo has failed to present evidence that could allow a
reasonable jury to find that Collinsville's actions rose beyond the level of gross negligence
to the level of deliberate indifference. Neither has Krug
presented any evidence of an "affirmative link" between the
City's alleged failure to train and the alleged constitutional
violation. Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).
Although DeSalvo points out that Krug received no instruction
in crowd control from the City of Collinsville, the record
reveals that Krug had already received such instruction at the
police academy he attended (Krug Dep. pp. 7-8). And although
Collinsville may not have a written policy on crowd control, a
fellow officer of Krug's, Eric Herman, testified that the City
does have a policy concerning large-crowd events (Herman Dep. p.
17). The evidence further shows that Collinsville has in place a
policy regarding taser use, "General Order 42" that specifies
when a taser can and cannot be used against a suspect (Krug. Dep.
Additionally, Krug testified that he had received "a four-hour
block of training on the taser's usage and the policy [regarding
such usage]" (Krug. Dep. p. 7). Even viewed in the light most
favorable to DeSalvo, this evidence does not reasonably support a
finding that Collinsville was deliberately indifferent toward the
constitutional rights of its citizens. No genuine issue of
material fact exists as to DeSalvo's claims against Collinsville.
The Court GRANTS Collinsville's motion for summary judgment
For the above-stated reasons, the Court DENIES Defendant
Krug's motion for summary judgment (Doc. 13) and GRANTS
Defendant Collinsville's motion for summary judgment (Doc. 15).
IT IS SO ORDERED.
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