United States District Court, C.D. Illinois
December 5, 2005.
BRIAN K. SIDES, Plaintiff,
CITY OF CHAMPAIGN, A Municipal Corporation; FREDRICK STAVINS, City Attorney; RHONDA OLDS, Assistant City Attorney; RANDALL CUNNINGHAM, Champaign Police Officer; JOSEPH KETCHEM, Champaign Police Officer; and COLBY OLESON, Champaign Police Officer, Defendants.
The opinion of the court was delivered by: HAROLD BAKER, District Judge
The plaintiff, Brian K. Sides ("Sides"), filed this action on
July 10, 2003. He alleges that the City of Champaign, Illinois
("the City") and several of its employees have violated his
constitutional rights and committed acts in violation of state
law. Sides and the defendants have filed cross-motions for
For the following reasons, the defendants' motion for summary
judgment is granted in its entirety. The plaintiff's motion for
summary judgment is denied.
On the afternoon of July 10, 2001, Sides and a female passenger
were inside Sides' car, which was parked behind the Champaign
Target store. Target security personnel monitoring surveillance
cameras observed, and videotaped, through the windshield of the
car, Sides engaging in sexual activity, or simulated sexual
activity, with his female passenger. A Target employee contacted
METCAD, and Champaign police officers responded to the call. By
the time police officers arrived, Sides had driven to the Borders
parking lot across the street from the Target store. Defendant
Randall Cunningham ("Cunningham"), a Champaign police officer,
arrived at the Borders parking lot, approached the car, and
directed Sides to step out of the vehicle. Defendant Colby Oleson
("Oleson"), also a Champaign police officer, approached the passenger side of the vehicle and questioned Sides'
passenger.*fn1 Sides was released after Cunningham issued
him a notice to appear in court on an ordinance violation for
public indecency by engaging in the specific offense of sexual
Sides alleges that during his detention (which he claims was
unreasonable) the officers (1) unreasonably searched him and
seized his wallet; (2) committed the common law torts of assault
and battery, trespass to chattel and invasion of privacy; and (3)
were deliberately indifferent to Sides' physical and medical
needs when they conducted the hour-long interrogation on that hot
July afternoon. He also alleges that officer Dale Rawdin defamed
him when he yelled in the Borders parking lot that Sides had had
unconsensual sex with a minor.*fn2 Sides also alleges that
the officers violated the Equal Protection Clause of the
United States Constitution by issuing a citation only to him and not to
his female passenger. Sides alleges that the City, through
defendants Fredrick Stavins ("Stavins") and Rhonda Olds ("Olds"),
prosecuted him for the ordinance violation contrary to the ex
post facto provision of the United States Constitution. He also
claims that Stavins and Olds maliciously prosecuted him by
committing improprieties during the underlying trial of the
Five motions are pending: a motion to bar the plaintiff's
expert [#76]; the defendants' motion for summary judgment [#81];
Sides' motion for summary judgment [#83]; an emergency motion to
stay proceedings for Red Cross deployment [#114]; and a motion to
stay the case pending state court proceedings [#115].
The emergency motion to stay proceedings for Red Cross
deployment is accompanied by Sides' affidavit. Sides sought to
stay the proceedings for a period of three weeks in October while
he provided volunteer disaster assistance for the Red Cross in
Washington, D.C. Sides has not sought to extend his motion;
therefore, the motion to stay proceedings [#114] is moot.
The basis for the motion to stay proceedings pending state
court proceedings [#115] is Sides' pending appeal of a state
court ruling that allowed the defendants to remove from the Champaign County Circuit Clerk's files the original videotape of
his activities next to the Target loading dock and in the
Border's parking lot. The defendants submit the videotape as an
exhibit in support of their motion for summary judgment. The
defendants have provided Sides with a copy of the videotape.
In support of their argument, Sides and the defendants cite
Green v. Benden, 281 F.3d 661, 666 (7th Cir. 2002). "The
Younger abstention doctrine requires federal courts to abstain
from enjoining ongoing state proceedings that are (1) judicial in
nature, (2) implicate important state interests, and (3) offer an
adequate opportunity for review of constitutional claims, (4) so
long as no extraordinary circumstances exist which would make
abstention inappropriate." Green, 281 F.3d at 666.
In his appeal, Sides argues that the exhibit's chain of custody
has been destroyed and the defendants' unfettered access to the
original videotape has left it vulnerable to tampering.
Therefore, he seeks an order from the state appellate court for
the defendants to return the tape to the Circuit Clerk, refile it
as part of the ordinance violation case, have the videotape
verified in that court, and copied for use in this case. Sides
states that he does not seek to limit this court's review of the
tape but only seeks to protect the proceedings by forcing proper
procedure upon the defendants. He does not argue that the
videotape has been altered in any way; he merely challenges the
procedure used by the defendants to provide this exhibit in
support of their motion.
Even if this court were to agree with Sides that the first
three elements of Younger abstention are met, he cannot meet
the fourth element of the test. The circumstances of this case
make abstention inappropriate: proceeding to trial in this case
will not interfere in any way with the state appellate court's
determination of the narrow issue on appeal. The videotape is
relevant to the issues before this court, and Sides does not
contend that the videotape has been altered in any way.
Furthermore, the appellate court, upholding Sides' conviction,
described some of the content of the videotape and further noted
that Sides had not objected to the videotape's chain of custody.
City of Champaign v. Sides, 810 N.E.2d 287, 296 (Ill.App.Ct.
2004). Of course, the chain of custody at issue then was
different from the chain of custody now at issue. However, as
discussed more fully below, this court has relied on the content
of the videotape only insofar as it is consistent with the images
described by the state appellate court when the chain of custody
was not at issue. See, e.g., Sides, 810 N.E.2d at 295.
Proceeding with this case will in no way interfere with the
appeal of the circuit court's ruling on the defendants'
possession of the original videotape. Therefore, the court denies
Sides' motion to stay proceedings pending state court proceedings
Summary judgment is granted "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). Summary
judgment is proper when "a party . . . fails to make a showing sufficient to establish the existence of an element essential to
that party's case[.]" Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The court must consider the evidence in the light
most favorable to the party opposing summary judgment. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The burden of
establishing that no genuine issue of material fact exists rests
with the movant. Jakubiec v. Cities Serv. Co., 844 F.2d 470,
473 (7th Cir. 1988). Once the movant has done so, the party
opposing the motion bears the burden to respond, not simply by
resting on the pleadings, but by affirmatively demonstrating that
there is a genuine issue of material fact for trial. See
Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322-324.
In order to be a "genuine" issue, there must be more than "some
metaphysical doubt as to the material facts." Matsushita Elec.
Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
"Summary judgment is not a dress rehearsal or practice run; it is
the put up or shut up moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact
to accept its version of the events." Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 859 (7th Cir. 2005) (emphasis added). "If
[the non-movant] does not [meet his burden], summary judgment, if
appropriate, shall be entered against [the non-movant]." See
The first few issues before the court relate to the legitimacy
of the municipal ordinance under which Sides was prosecuted.
A. The plaintiff's expert
Sides has e-filed the report of his expert, Dr. James F. Castor
[#64]. The defendants have filed a motion to bar Dr. Castor's
testimony [#76], characterizing his opinions as legal
conclusions. Sides bears the burden to prove that the proposed
testimony meets the requirements set forth below. See Frey v.
Chicago Conservation Ctr., 119 F. Supp. 2d 794, 797 (N.D. Ill.
Dr. Castor discusses the validity of Table I, Ordinance
Violations Minimum Fines ("Table I") of the Champaign Municipal
Code, under which Sides was fined. Sides contends that Table I
had expired at the time of his citation; the City Council never
passed a new ordinance revising Table I to increase the fine for
public indecency to $175, and the ordinance provisions that
purport to assess the $175 fine "were simply made up by the
defendants as know [sic] council bills are in existence which
grant authority for this change in the Code." Dr. Castor
generally supports this conclusion.
In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993), the Supreme Court established a two-part inquiry for
assessing expert testimony. The Daubert inquiry is applied to
all proffered expert testimony, whether scientific, technical or
specialized in nature. Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141 (1999). The Daubert framework measures both the
reliability and the relevance of the expert testimony. Expert
testimony is admissible if the "expert is proposing to testify to
(1) scientific knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue." Daubert,
509 U.S. at 592. The first prong tests the reliability of the testimony,
and the second prong tests the relevance of the testimony. See
Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 420 (7th
Cir. 2005). I. Reliability
First, the court must identify the relevant analysis and focus
its inquiry on whether the expert's testimony is reliable.
Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 816 (7th
Cir. 2004). That is, the court "must determine whether the expert
is qualified in the relevant field and whether the methodology
underlying the expert's conclusions is reliable." Masters v.
Hesston Corp., 291 F.3d 985, 991 (7th Cir. 2002). Daubert sets
out four factors when weighing reliability: (1) whether the
expert's technique or theory has been tested; (2) whether it has
been subjected to peer review; (3) its known or potential error
rate; and (4) whether it enjoys general acceptance within the
relevant community. Daubert, 509 U.S. at 593-94.
Courts must be flexible in their application of Daubert. The
2000 Advisory Committee's Notes to Federal Rule of Evidence 702
suggest additional benchmarks for gauging expert reliability,
including: (1) whether "maintenance standards and controls"
exist; (2) whether the testimony relates to "matters growing
naturally and directly out of research [the expert has] conducted
independent of the litigation," or developed "expressly for
purposes of testifying"; (3) "[w]hether the expert has
unjustifiably extrapolated from an accepted premise to an
unfounded conclusion"; (4) "[w]hether the expert has adequately
accounted for obvious alternative explanations"; (5) "[w]hether
the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting"; and
(6) "[w]hether the field of expertise claimed by the expert is
known to reach reliable results for the type of opinion the
expert would give." Fed.R.Evid. 702 advisory committee's note
(2000 amends.); Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35
(7th Cir. 2005).
Dr. Castor has a B.S. degree in law enforcement administration
and sociology from Western Illinois University. He obtained his
M.A. in criminal justice and a Ph.D. in public policy analysis
from the University of Illinois at Chicago. His doctoral
dissertation is titled "Assessing the Functional and
Constitutional Implications of Private Security Patrols on Public
Streets." Dr. Castor states that the public policy curriculum
includes how a bill becomes law, and how legislation relates to
larger public policy goals. He also obtained a J.D. from John
Marshall Law School. Dr. Castor's education and professional
background focus on public safety and security issues. He has
served as a plaintiff's expert witness in two cases and has
served as a consulting expert for an engineering firm; in all
three instances, his expertise related to security issues.
There is no indication that Dr. Castor possesses specialized
knowledge on the enactment of municipal ordinances. His area of
expertise is focused on police, security and terrorism issues,
not on municipal legislation. The area at issue does not "grow
naturally and directly out of research" Dr. Castor has "conducted
independent of the litigation." His limited education in the
enactment of legislation does not appear to be concentrated in
municipal legislation. He has "extrapolated" his general
knowledge of the process of legislative enactment to this
particular situation and reached "an unfounded conclusion."
Moreover, Dr. Castor does not account for the "obvious
alternative explanation." The fines in Table I increased
automatically on July 1, 2003. Section 1-24(h) of the Municipal
Code states: "Effective July 1, 1999, and every two (2) years
thereafter on July 1, the minimum fine set forth in Table I shall
be increased automatically by the amount of ten dollars ($10.00)
unless the City Council, by ordinance, delays the effective date
of such increase. The City Clerk shall on or after July 1 of any
such year cause a new Table I to be codified." Nowhere in his
expert report or in his affidavit does he claim that Section
1-24(h) was improperly enacted. Dr. Castor simply determined that
the amendments he reviewed did not amend the Table I fine for
public indecency.*fn4 For these reasons, his testimony is
In addition, Dr. Castor's testimony would not assist the trier
of fact. Because of his failure to account for the "obvious
alternative explanation" Dr. Castor's testimony fails to satisfy
the second part of the Daubert framework relevance. The plain
meaning of the relevant sections of the Municipal Code is easily
understood by a layperson. Table I, provided by the plaintiff,
specifically states that it is "effective July 1, 2001 through
June 30, 2003." Sides was cited for public indecency on July 10,
2003, ten days after the effective date of the automatic
increase. The Municipal Code required the City Clerk to publish
the new Table I on or after July 1, 2003. That the City Clerk
had not yet published a new table of fines when Sides was cited
is irrelevant;*fn5 it was well established that the fines
would increase by $10 on July 1, 2003. An expert in municipal
ordinance enactment is not needed when the court can interpret
the Municipal Code according to its plain meaning.
Consequently, the motion to bar the plaintiff's expert [#76] is
granted. B. Ex post facto violation
Sides claims that the City prosecuted him for an ordinance
violation that was not published law at the time of the offense.
He further claims that Stavins and Olds conspired to violate his
civil rights at trial and on appeal by falsely arguing that the
ordinance was published law. He argues this violates the ex post
facto provision of the United States Constitution. U.S. Const.
art. I, § 9, cl. 3. It does not.
To fall within the ex post facto clause, a "law must be
retrospective, that is, it must apply to events occurring before
its enactment; and . . . it must disadvantage the offender
affected by it." Glascoe v. Bezy, 421 F.3d 543, 546 (7th Cir.
2005) (quoting Miller v. Florida, 482 U.S. 423, 430 (1987). As
discussed above, Section 1-24(h) of the Municipal Code provides
for an automatic increase of $10 in the minimum fines beginning
July 1, 1999 and on July 1 every two (2) years thereafter. On or
after the effective dates of the automatic increases, the City
Clerk issues a new Table I. Nothing in the ordinance or the
process itself suggests that the new fines cannot be applied
until the new Table I is published. On the contrary, Section
1-24(h) specifies that the new fines are effective on July 1,
and that on or after that date, the City Clerk must publish a
new Table I. The increase in minimum fines did not apply to
events occurring before its effective date; Sides violated the
ordinance on July 10, 2001, ten days after the effective date
of the increase. There was no ex post facto violation because
the new table of fines was effective nine days before Sides
violated the ordinance.
C. Detention, search and seizure
In his complaint, Sides contends that the officers lacked legal
justification to detain him, and/or that he was detained for an
unreasonable duration and under unreasonable circumstances given
the weather conditions.
First, Sides argues that the officers lacked legal
justification to detain him. "A law enforcement officer may
conduct a brief, non-intrusive detention of a person if the
officer has specific and articulable facts sufficient to give
rise to a reasonable suspicion that the person had committed or
is committing a crime." United States v. Askew, 403 F.3d 496,
507 (7th Cir. 2005) (citing Terry v. Ohio, 392 U.S. 1, 26
(1968); United States v. Scheets, 188 F.3d 829, 837 (7th Cir.
1999). At his deposition, Sides did not dispute that officers had
been advised that he had engaged in some type of sexual activity
behind the Target store,*fn6 and he admitted or acknowledged
there was a videotape showing that he was engaged in some type of
sexual activity behind the Target store. The officers had a
reasonable suspicion to detain Sides.
"A court considering the reasonableness of a particular
detention's duration must `examine 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 the defendant.'" Scheets,
188 F.3d at 838 (quoting United States v. Robinson, 30 F.3d 774, 784 (7th
Cir. 1994); United States v. Sharpe, 470 U.S. 675, 686 (1985)).
The defendants have submitted METCAD records documenting the
stop. Officers arrived on the scene at 1:31 p.m. The officers
ascertained Sides' identity, ran a check on his drivers license,
questioned Sides*fn7 and his female passenger, went to the
Target store to view and/or obtain the surveillance video, and
issued a citation. METCAD received a "clear call" at 2:34 p.m.
The length of Sides' detention was not unreasonable under the
Sides also contends that the officers were deliberately
indifferent to his serious physical and medical needs due to
prolonged exposure to the heat. The Due Process Clause protects
arrestees from deliberate indifference to a serious injury or
medical need. Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir.
2001). To prevail, Sides must satisfy an objective and a
subjective element. He must show (1) an objectively serious
injury or medical need was deprived; and (2) the officers knew
that the risk of injury was substantial but nevertheless failed
to take reasonable measures to prevent it. Chapman,
241 F.3d at 845. Sides contends that the hot July weather caused him to
experience dizziness and dehydration, which he repeatedly
mentioned to the officers. He further states that four or five
hours after his detention his buttocks were sore, inflamed and
red because he had leaned against the fender of his running car.
After his release, he took aspirin and had aloe applied to the
affected area. The physical symptoms disappeared within
forty-eight hours. Several years later, he retained the services
of an expert, a physician, to whom Sides described his symptoms.
The physician apparently opined that the symptoms Sides described
were caused by the events of the day.*fn8 Sides' claim fails
on several levels. His physical need, if any, was not objectively
serious; Sides was detained for approximately one hour and
thereafter did not seek medical assistance on his own. Moreover,
his allegation of injury is unsupported by evidence other than
his say-so.*fn9 He has failed to meet his prima facie burden
on this issue.
Sides also contends that he was subjected to an unreasonable
search and seizure that also constitutes an assault and battery,
trespass to chattel and invasion of privacy. Ordinance violations
are quasi-criminal in nature. City of Danville v. Clark,
348 N.E.2d 844, 845 (Ill. 1976). Officers who have probable cause to arrest a suspect may conduct
a pat-down search.*fn10 United States v. Jackson,
377 F.3d 715, 716 (7th Cir. 2004). Sides contends that he rolled down his
window and handed Cunningham his drivers license when Cunningham
approached the car. Later during his detention, Sides alleges,
officer Dale Rawdin unreasonably pinned Sides' arm behind his
back, searched his person, removed a wallet, and perused the
contents without probable cause.*fn11 The officers responded
to a call regarding unlawful conduct involving sexual activity;
they were given the vehicle location, description and license
plate. When the officers located the vehicle, they noted a man
and woman inside the vehicle. The officers had probable cause to
justify a pat-down. Moreover, even if the search and seizure were
unlawful, it was Rawdin who committed the violation, and he is
not named as a defendant.*fn12 Therefore, Sides cannot
prevail on this issue.
D. Equal protection violation
Sides contends that the defendants cited him for public
indecency by sexual intercourse, an act that cannot be committed
without a second individual; yet, his female passenger was not
cited for her conduct. He argues that the defendants' selective
enforcement of the ordinance amounts to a violation of the Equal
Protection Clause. U.S. Const. amend. XIV. An officer has
discretion in the enforcement of an ordinance or statute. Oyler
v. Boles, 368 U.S. 448, 456 (1962). Deliberate selective
enforcement of a statute does not rise to the level of a
constitutional violation unless "the selection was deliberately
based upon an unjustifiable standard such as race, religion, or
other arbitrary classification." Oyler, 368 U.S. at 456.
At his deposition, Sides was questioned, and he answered, as
Q. You admit now that you were engaged in sexual intercourse
behind the Target store; correct?
A. No, I do not. I admit that I was found guilty of it.
Q. What was it that you were doing behind the Target store?
A. I was gratifying myself before my partner at that time,
Q. So you were masturbating? A. I don't think that's an inaccurate description.
Q. What would be more accurate?
A. That I was gratifying myself before my partner at the time,
Q. By engaging in what type of activity?
A. I think masturbation.
Q. Why do you think that Christina admitted to the police
officers at the scene that you were actually having sexual
A. If you mean it's my understanding that never happened at
all. It's my understanding that she was asked if you two were
having sex, you two meaning myself and Christina, and I believe
that she probably may have answered in the affirmative.
A. She was not entirely clothed and neither was I.*fn13
No reasonable jury could conclude the officer's conscious
exercise of selectivity in enforcement was based on an
unjustifiable standard. See Oyler, 368 U.S. at 456. The
surveillance video shows a woman in the car with Sides. The
Illinois Appellate Court succinctly stated, "[Sides] was the only
person whose naked buttocks are visible in graphic motion as
memorialized on the videotape. [Sides] and his sexual partner
were not similarly situated." Sides, 810 N.E.2d at 295. Indeed,
the officers' decision was well supported by the images on the
surveillance video, a decision further strengthened by the
corroborative statement of Sides' female companion during
E. Unlawful assistance from the State's Attorney's Office
The defendants have moved for summary judgment on Sides' claim
that defendant Olds received improper assistance from the
Champaign County State's Attorney's Office during the trial of
his ordinance violation. At his deposition, Sides stated that an
assistant state's attorney sat in the back of the courtroom and
either assisted Olds or gave Sides a hard time. The Illinois
Appellate Court characterized Sides' argument as a contention
that the City "`was receiving additional assistance, off the
record, and outside the presence of the jury.'" Sides,
810 N.E.2d at 301. Sides claims this assistance amounts to
The assistant state's attorney did not sit at the counsel
table, but during one recess she passed through the gallery doors
into the counsel area to confer privately with Olds. Sides does not know what the conversation was about. The county employee
also allowed Olds to borrow an evidence treatise from the State's
Attorney's Office. Sides felt the county employee harassed him
during recesses. At his deposition, he stated, "That's what I
remember most. Because it probably frustrated me the
most."*fn14 He claimed her involvement diverted his
attention. Sides agrees she never made any representations to the
court or the judge, and Sides does not recall whether she
provided any assistance in the preparation of direct or
cross-examination, helped to formulate opening remarks or closing
statements, or provided any legal authority for any positions the
City had taken, other than to provide a copy of the treatise. The
appellate court found Sides' arguments unpersuasive, noting, "It
is not prejudicial for opposing counsel to consult with another
attorney." Sides, 810 N.E.2d at 301. This court concurs, and
sees no need to review the issue.
F. Defendants' prosecutorial misconduct
The defendants also move the court for summary judgment on
Sides' claim that Stavins and Olds made false representations to
the circuit court, failed to comply with discovery requests for
an officer's handwritten notes, used trickery to amend the
ordinance violation complaint to alter an element of the offense,
and did so with malice or ill will. These issues were raised in,
and rejected by, the circuit court. This court specifically
declines to second-guess the circuit court's rulings on matters
that properly belong within the state's jurisdiction. This court
is ill-equipped to judge the assertions and credibility of
counsel in the underlying case.
For the foregoing reasons:
(1) the plaintiff's emergency motion to stay proceedings for
Red Cross deployment [#114] is denied as moot;
(2) the plaintiff's motion to stay pending state court
proceedings [#115] is denied;
(3) the defendants' motion for an order to bar the plaintiff's
expert [#76] is granted;
(4) the defendants' motion for summary judgment [#81] is
granted in its entirety; and
(5) the plaintiff's motion for summary judgment [#83] is denied
in its entirety.
The final pretrial conference now scheduled for December 6,
2005 at 1:30 p.m. is vacated. This case is terminated. The
parties shall bear their own costs.
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