United States District Court, C.D. Illinois, Peoria Division
December 16, 2005.
JOHN E. COVINGTON, Plaintiff,
JIM SMITH, Defendant.
The opinion of the court was delivered by: JOE McDADE, Chief Judge
Before the Court is Plaintiff John E. Covington's Motion for
Temporary Restraining Order and/or Preliminary Injunction [Doc.
#19]; and his Further Motion for Temporary Restraining Order
and/or Preliminary Injunction [Doc. #21]. For the reasons that
follow, Plaintiff's Motions are denied.
On July 28, 2005, Plaintiff filed a complaint against the
United States Department of Justice ("DOJ") and Officer Jim Smith
raising constitutional claims under 42 U.S.C. § 1983 and Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971). With
permission of the Court, Plaintiff amended his complaint dropping
the DOJ as a defendant but reasserting his claims against Officer
Smith. On November 10, 2005, Plaintiff filed the instant Motion
seeking a temporary restraining order ("TRO") and/or a
preliminary injunction against Officer Smith. In support of his Motion, Plaintiff alleges that Defendant
engaged in the following acts while searching for his 23 year-old
fugitive son: (1) arrested Plaintiff for outstanding warrants
after illegally entering his home on May 5, 2003; (2) harassed
Plaintiff after attempting to enter his home on November 1, 2004;
(3) arrested Plaintiff for traffic violations and obstructing the
police after illegally entering his home without a warrant on
October 8, 2004; (4) harassed Plaintiff on or about July 8, 2005;
and (5) harassed Plaintiff on October 1, 2005, by lurking in his
neighborhood in an unmarked police car. Based on these events,
Plaintiff seeks to enjoin Defendant and all others acting in
concert with him from: (1) further deprivations of his civil
rights; (2) entering his home (with the exception of an emergency
response); (3) further threats of harassment; and (4) whatever
else the Court deems just and proper.
As a threshold matter, a court may not grant a TRO absent the
submission of an affidavit or verified complaint pointing to
specific facts which clearly indicate that the applicant will
suffer immediate and irreparable harm prior to the adverse party
receiving notice and an opportunity to be heard. See
Fed.R.Civ.P. 65(b). Plaintiff in the instant matter has neither filed an affidavit nor a verified complaint with the Court.
Furthermore, the adverse party has already received notice of
Plaintiff's Motion, and has responded. See Def. Resp. [Doc
#20]. Therefore, the instant Motion will be viewed simply as a
motion for preliminary injunction.*fn1 See Levas v. Vill.
of Antiotch, 684 F.2d 446, 448 (7th Cir. 1982) (holding that a
court should treat a TRO as one for preliminary injunction when
the adverse party has notice and an opportunity to be heard).
"Preliminary injunctive relief is an extraordinary remedy and
should be granted only in limited circumstances." Kos Pharms.,
Inc. v. Andrx Corp., 369 F.3d 700, 708 (7th Cir. 2004) (internal
quotations omitted). To help the district courts determine which
circumstances warrant such relief, the Seventh Circuit
articulated a five-part test:
A party seeking a preliminary injunction must
demonstrate that (1) the moving party has a
reasonable likelihood of success on the merits; (2)
no adequate remedy at law exists; (3) the moving
party will suffer irreparable harm without injunctive
relief; (4) the irreparable harm suffered without
injunctive relief outweighs the irreparable harm the
defendant will suffer if the injunction is granted; and (5) the injunction will
not harm the public interest. In order to prevail,
the plaintiff must satisfy each element of this
Rust Env't & Infrastructure v. Teunissen, 131 F.3d 1210, 1213
(7th Cir. 1997) (citations omitted).
A preliminary injunction will not issue, unless a plaintiff can
first demonstrate that he has a reasonable likelihood of
succeeding on the merits of his case. This threshold, however, is
low. See Roland Mach. Co. v. Dresser Indus., Inc.,
749 F.2d 380, 387 (7th Cir. 1984). In fact, a plaintiff need only show
"that [he] has a better than negligible chance of succeeding on
the merits." Meridian Mut. Ins. Co. v. Meridian Ins. Group,
128 F.3d 1111, 1114 (7th Cir. 1997); see also Barbecue Marx,
Inc. v. 551 Ogden, Inc., 235 F.3d 1041, 1043 (7th Cir. 2000).
In addition to demonstrating a likelihood of success on the
merits, a plaintiff must also show that he has no adequate remedy
at law and will suffer irreparable harm absent injunctive relief.
Roland Mach., 749 F.2d at 386. But "[w]here the only remedy
sought at trial is damages, the two requirements irreparable
harm, and no adequate remedy at law merge. The question is then
whether the plaintiff will be made whole if he prevails on the
merits and is awarded damages." Id. "Only if he will suffer
irreparable harm in the interim that is, harm that cannot be
prevented or fully rectified by the final judgment after trial can he get a preliminary injunction."
Id. In essence, "the plaintiff must show that an award of
damages at the end of trial will be inadequate," that is, an
award of damages is "seriously deficient as a remedy for the harm
suffered." Id. Moreover, if the plaintiff "can easily wait till
the end of trial to get [his] relief[,]" he has suffered no
irreparable harm. Id.
Once the plaintiff clears these three hurdles, the court must
then weigh the amount of irreparable harm that the defendant can
show he will suffer if the injunction is granted versus the
amount of irreparable harm that the plaintiff will suffer if the
preliminary injunction is denied. Roland Mach.,
749 F.2d at 387. Finally, if granting or denying a preliminary injunction
will have consequences beyond the immediate parties, the Court
must then consider the possible effect its decision will have on
the "public interest" at stake. Id. at 388.
The Court first cautions that the legal analysis to follow is
tentative because the purpose of a preliminary injunction is to
preserve the status quo until the merits of the case have been
determined; it is not to serve as the last word on factual and
legal disputes between the parties. See Teunissen,
131 F.3d at 1213; Indianapolis Colts v. Metro. Baltimore Football Club Ltd. P'ship, 34 F.3d 410, 412 (7th Cir. 1994); Office Mates 5,
North Shore, Inc. v. Hazen, 234 Ill. App. 3d 557, 567-68
(1st Dist. 1992). With this in mind, the Court will now turn
to the merits of Plaintiff's constitutional claims under § 1983
and Bivens before addressing the remainder of the preliminary
injunction factors. See Meridian Mut., 128 F.3d at 1121
(emphasizing that district courts should examine, if only
briefly, each of the preliminary injunction factors).
A. Reasonable Likelihood of Success on the Merits
In his Motion, Plaintiff contends that as far back as May 2003
and as recent as October 2005, Defendant has engaged in acts
which violate his civil rights. However, the civil rights
violations alleged in Plaintiff's amended complaint relate only
to the events that took place on October 8, 2004, at his home on
716 E. Wilcox. As a result, this Court need only address the
merits of Plaintiff's claims as alleged in his amended complaint.
1. Unreasonable Search & Seizure Claims
Based on his amended complaint and the instant Motion,
Plaintiff has a reasonable likelihood of success on the merits of
his unreasonable search and seizure claims; that is, his chances
of succeeding are better than negligible. The Fourth Amendment
guarantees "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." U.S. Const. amend. IV. There is no
question that Defendant conducted a search of Plaintiff's home on
October 8, 2004, and that Plaintiff was subsequently arrested
amounting to a seizure of his person. The only question is
whether the search of plaintiff's home and his subsequent seizure
were "unreasonable" under the Fourth Amendment.
It is well-established that searches and seizures inside a home
without a warrant are presumptively unreasonable under the
Fourth Amendment. Payton v. New York, 445 U.S. 573, 585-86 (1980);
Leaf v. Shelnutt, 400 F.3d 1070, 1081 (7th Cir. 2005). As the
Supreme Court stated, "the Fourth Amendment has drawn a firm line
at the entrance to the house. Absent exigent circumstances [or
consent], that threshold may not reasonably be crossed without a
warrant." Payton, 445 U.S. at 590.
Defendant concedes that he had no search warrant to enter and
search Plaintiff's home, nor an arrest warrant to arrest
Plaintiff. Further, none of the exceptions to the warrant
requirement apply to the facts of this case. Plaintiff did not
consent to Defendant's entry and subsequent search of his home,
nor did anyone else living with Plaintiff. See Moore v.
Marketplace Rest., Inc., 754 F.2d 1336, 1357 (7th Cir. 1985)
(Posner, J., concurring) ("When police knock at the door of a
house . . . and the householder opens the door, he does not thereby consent to an entry into his house. He opens the door so
that the police will not break it in.").
Also, the facts of this case do not warrant a finding of
exigent circumstances. Exigent circumstances exist only when
there is "a compelling need for official action and no time to
secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509 (1978)
(emphasis added). As the Supreme Court explained, these
situations are "few in number and carefully delineated, and
[thus] police bear a heavy burden when attempting to demonstrate
an urgent need that might justify warrantless searches or
arrests." Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984)
(internal quotations omitted); see also Minnesota v. Olson,
495 U.S. 91, 100 (1990) (explaining that exigent circumstances
include hot pursuit of a fleeing felon, imminent destruction of
evidence, the need to prevent a suspect's escape, and risk of
danger to the police or others inside or outside the home).
Defendant, however, simply alleges no facts that would support a
finding that he had an "urgent need" to take official action.
Moreover, even if probable cause did exist to believe that
Plaintiff's son was present and could possibly escape, which the
Court does not find to be the case, Defendant had several hours
to secure a search warrant during his surveillance of Plaintiff's
home. See United States v. Patino, 830 F.2d 1413, 1416 (7th
Cir. 1987) (holding that thirty minutes is more than enough time to arrange a telephonic search warrant pursuant to
Federal Rule of Criminal Procedure 41(d)(3)(A), formerly
41(c)(2)). As a result, not only does Defendant fail to show a
compelling need to take official action, but he also had
sufficient time to get a search warrant before entering
Plaintiff's home in search of his son. The Court's analysis,
however, does not end here.
An officer is not required to obtain a search warrant to
effectuate a suspect's arrest in his or her own home; instead,
"an arrest warrant founded on probable cause implicitly carries
with it the limited authority to enter a dwelling in which the
suspect lives when there is reason to believe the suspect is
within." Payton, 445 U.S. at 603. But the Supreme Court later
clarified that this "limited authority" did not extend to the
home of a third person. See Steagald v. United States,
451 U.S. 204, 205 (1981). In Steagald, the Supreme Court held that
absent exigent circumstances or consent, an officer must first
obtain a search warrant before entering a third person's home to
search for the subject of an arrest warrant. Id. at 205, 221
(explaining that police can readily seize the subject of an
arrest warrant before he enters or after he leaves the home of a
Defendant alleges that while he had no warrant to either arrest
Plaintiff or search his home, he did have a valid warrant to arrest Plaintiff's son. However, the Fourth Amendment claim
here is not being asserted by Plaintiff's son; it is being
asserted by Plaintiff, a person not named in the arrest warrant.
Thus, under Steagald, Defendant had no authority to enter
Plaintiff's home to search for his son, despite the existence of
a valid arrest warrant in his son's name.
Defendant, however, argues that the Court's analysis should be
governed by Payton, rather than Steagald. In a footnote in
his Memorandum in Opposition to Plaintiff's Motion ("Response"),
he states that "officers had reason to believe that [P]laintiff's
son lived at 716 E. Wilcox and had reason to believe that
[P]laintiff's son was present, thus [the] search was entirely
lawful, due to Payton v. New York[.]" Def. Resp. [Doc #20].
This isolated statement alone, of course, is insufficient.
Defendant provides no facts in his Response to support the
reasonableness of this claim. The only facts the Court could find
that would lend any support to Defendant's statement are
contained in the police report attached to Plaintiff's Motion.
However, these facts too are insufficient.
In his police report, Defendant states that mail for
Plaintiff's son was delivered to Plaintiff's home at 716 E.
Wilcox. However, he does not state how much mail was delivered,
when, or for how long. The mere fact that some mail may have been
delivered to Plaintiff's address in the name of his son not knowing how much or for how long would hardly seem
sufficient to this Court to form a reasonable basis for believing
that Plaintiff's 23 year-old son was in fact living at his
father's home. This is especially true since the only thing that
distinguishes Plaintiff, John Covington, Sr., from his son, John
Covington, Jr., is the suffix at the end of their names.
Moreover, many people continue to receive mail at their parent's
home, at least for some time, after they move out.
While the location where mail is delivered is certainly a
factor to be consider when determining whether a particular place
is a person's "home" for purposes of Payton, it is only one of
many factors.*fn2 The more important question would seem to
be whether the suspect has dominion or control over the premises.
Nothing in Defendant's police report or his Response, suggests
that Plaintiff's son had any control over the premises located at
716 E. Wilcox. Even if Defendant had reason to believe that
Plaintiff's son resided at 716 E. Wilcox, Defendant cannot meet the second prong of Payton that he had reason to
believe that Plaintiff's son was inside the residence at the time
he entered to execute the arrest warrant.
To justify his belief that Plaintiff's son was not only
residing at 716 E. Wilcox, but was also present at the time he
entered the premises on October 8, 2004, Defendant relies on his
surveillance of the residence. In his police report, Defendant
makes an ambiguous statement that one of the officers "saw
someone look out an upstairs window while [he] was knocking on
the front door." Pl. Mtn. (emphasis added) [Doc. #19]. Defendant,
however, does not point to any facts that would lead a reasonable
officer under like circumstances to believe that the person
looking out the upstairs window may have been Plaintiff's son. In
fact, he does not provide a description of this person, nor does
he state that he or any other officer reasonably believed that
the anonymous person was indeed Plaintiff's son. Further,
Defendant does not suggest that Plaintiff's son was ever
positively identified by any officer during the surveillance of
Plaintiff's home, nor does he allege that a reliable source could
place Plaintiff's son anywhere close to 716 E. Wilcox on October
If Defendant indeed had reason to believe that the individual
in the upstairs window was Plaintiff's son, and reason to believe
that Plaintiff's son in fact lived with his father at 716 E. Wilcox, then the arrest warrant naming
Plaintiff's son as a suspect would have been sufficient to
justify his entry into the home at that time. See Payton,
445 U.S. at 603. But, Defendant did not enter the home upon noticing
"someone" looking out of the upstairs window; instead, he waited
several hours until he noticed Plaintiff drive past him without a
license. It was not until this time that he decided to enter
Plaintiff's home without a warrant and without Plaintiff's
While this Court does not sit to second guess police methods
for catching fugitives, it does sit to ensure that police have a
reasonable basis for crossing the threshold of a person's
"castle" absent a search warrant. Here, it does not appear that
Defendant had a reasonable basis to conduct a warrantless search
of Plaintiff's home. If he did, it is unclear to this Court why
he did not use the additional time he had to secure a search
warrant as many courts have often instructed. See Patino,
830 F.2d at 1416.
It is only when an officer has a lawful purpose for entering a
person's home does the Constitution not require him to obtain a
warrant before effectuating an otherwise lawful arrest within.
See Sheik-Abdi v. McClellan, 37 F.3d 1240, 1245 (7th Cir.
1994) (stating that "[o]nce the veil of the home has been legally
pierced, we see no need for police officers to turn a blind eye to crime, so long as the arrest is otherwise effected
in compliance with the constitutional requirement of probable
cause"). Because Defendant had no lawful purpose for entering
Plaintiff's home in the first place, Plaintiff's subsequent
arrest within was also unlawful.
Finally, Defendant raises qualified immunity as an affirmative
defense to any finding by the Court that his actions on October
8, 2004, were unconstitutional. A public official is entitled to
qualified immunity only if the Court determines that the
particular constitutional violation in question was not "clearly
established" at the time of his actions. Green v. Butler,
420 F.3d 689, 700-01 (7th Cir. 2005). The Court, however, finds that
no reasonable officer under like circumstances could claim to be
unaware that a warrantless entry into a person's home is
presumptively unconstitutional, absent exigent circumstances,
consent, or reason to believe that the suspect named in the
arrest warrant lived at the address searched and was in fact home
at the time of the search. See Groh v. Ramirez, 540 U.S. 551,
564-65 (2004); Hyatt v. Indianapolis Police Dep't, No.
03-cv-0424, 2004 U.S. Dist. LEXIS 15672, at *25-27 (N.D. Ill.
July 20, 2004). As a result, Defendant is not entitled to
qualified immunity and Plaintiff has a better than negligible
chance of succeeding on the merits of his unreasonable search and
seizure claims. 2. False Arrest Claim
While a false arrest claim is considered to be a species of an
unreasonable seizure under the Fourth Amendment, see Gauger v.
Hendle, 349 F.3d 354, 360 (7th Cir. 2003), it is important to
distinguish between Plaintiff's false arrest claim and his
unreasonable seizure claim above. In his unreasonable seizure
claim, Plaintiff does not focus on whether Defendant had probable
cause to arrest him; instead, he attacks the manner in which
Defendant carried out his arrest, without a warrant. On the other
hand, Plaintiff alleges in his false arrest claim that Defendant
simply lacked probable cause to arrest him in the first place.
Probable cause to arrest exists when the facts and
circumstances, within the officer's knowledge and of which he has
reasonably trustworthy information are sufficient to warrant a
reasonable belief that a crime has been, is being, or is about to
be committed. See Xing Qian v. Kautz, 168 F.3d 949, 953 (7th
Cir. 1999). Courts evaluate probable cause "not on the facts as
an omniscient observer would perceive them but on the facts as
they would have appeared to a reasonable person in the position
of the arresting officer seeing what he saw, hearing what he
heard." Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992)
(emphasis in original). "This flexible, commonsense approach does
not require that the officer's belief be correct or even more
likely true than false, so long as it is reasonable." Xing Qian, 168 F.3d at 953. Therefore, the existence of probable
cause serves as a complete defense to a false arrest claim under
the Fourth Amendment. Penn v. Chicago State Univ.,
162 F.Supp. 2d 968, 975 (N.D. Ill. 2001).
To support his false arrest claim, Plaintiff suggests that his
arrest was merely a pretext, and that he was really arrested for
his refusal to cooperate with Defendant's warrantless search of
his home. Even if Defendant did have bad motives for arresting
Plaintiff, this fact plays no role in the Court's probable cause
analysis. Probable cause is an objective test it is what the
police know, have seen, or have heard making an officer's
subjective state of mind irrelevant. See Sheik-Abdi,
37 F.3d at 1246-47.
According to both Plaintiff and Defendant, the two of them have
had several "run-ins" over the years. As a result, Defendant was
aware that Plaintiff's driver's license had been expired since
1999. Despite this knowledge, Defendant checked the status of
Plaintiff's driver's license during his surveillance of
Plaintiff's home on October 8, 2004. The check confirmed what
Defendant basically already knew, that Plaintiff's driver's
license was still expired. Later that same day, Defendant
witnessed Plaintiff drive past his surveillance location in the
700 block of East Wilcox. Defendant was able to clearly identify
Plaintiff as the driver and followed him to his home at 716 E.
Wilcox. Therefore, looking at the facts as they would have
appeared to Defendant at the time of the arrest, it is apparent that a prudent officer would have believed that
probable cause existed to arrest Plaintiff for driving without a
license.*fn3 As a result, Plaintiff has no likelihood of
succeeding on the merits of his false arrest claim.
3. Excessive Force Claim
In his amended complaint, Plaintiff alleges that after entering
his home without a warrant or his consent, Defendant forcibly
handcuffed him and threw him into a chair, lifting him off the
ground and re-injuring his back. In his Motion, Plaintiff argues
that the injury he suffered during the unlawful search and
seizure further warrants the issuance of a preliminary injunction
Defendant, however, fails to address the merits of Plaintiff's
excessive force claim in his Response. In fact, the only possible
opposition the Court could find to Plaintiff's excessive force
claim is, again, located in Defendant's police report attached to
Plaintiff's Motion. But the facts as alleged in the police report
do little to discredit the validity of Plaintiff's claim.
Instead, the police report indicates that when Plaintiff opened
his front door, Defendant requested that Plaintiff allow him to
search the house for his son. Plaintiff then became verbally resistant and refused Defendant's
request.*fn4 According to the police report, Defendant
entered Plaintiff's home despite his resistance, placed Plaintiff
in handcuffs, and sat him in a living room chair while the other
officers searched the house. It does not appear that Defendant or
any other officer told Plaintiff that he was under arrest or
suggested that his arrest would be imminent prior to handcuffing
him and placing or throwing him into the chair. It is this
incident which Plaintiff alleges was excessive under the
circumstances and caused him to re-injure his back.
Allegations that a police officer used excessive force are
analyzed under the Fourth Amendment's "reasonableness"
requirement. Payne v. Pauley, 337 F.3d 767, 778 (7th Cir.
2003). "A police officer's use of force is unconstitutional if,
judging from the totality of circumstances at the time of the
arrest, the officer used greater force than was reasonably
necessary to make the arrest." Id. (internal quotations
omitted). The Court's inquiry is based on an objective standard
of reasonableness, which is "from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. 386, 396
Thus, "[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates the
Forth Amendment." Id. This is because courts must be cognizant
of the fact that "police officers are often forced to make
split-second judgments in circumstances that are tense,
uncertain, and rapidly evolving about the amount of force that
is necessary in a particular situation." Id. at 397. Therefore,
the Supreme Court instructed the lower courts to consider the
following factors when determining whether the amount of force
used was reasonable under the circumstances: (1) the severity of
the crime at issue; (2) whether the suspect posed an immediate
threat to the safety of the officers or others; and (3) whether
the suspect actively resisted arrest or attempted to evade arrest
by flight. See id. at 396.
In the instant matter, none of the above-listed factors weigh
in favor of Defendant. The crimes for which Plaintiff was
arrested were neither violent nor serious.*fn5 Further,
Plaintiff was not an immediate threat to the safety of Defendant
or any other officers or persons on the scene. Finally, Plaintiff
did not attempt to evade arrest, nor did he actively resist
arrest. Although the police report indicates that Plaintiff was
handcuffed and placed in a chair because he became resistive, the
question as to when a person is deemed to be "resisting" a police
officer is a question of law, not fact.
First, it is difficult to see how Plaintiff could have been
actively resisting or attempting to evade arrest when he had no
idea that he was in danger of being arrested. See Fantasia v.
Kinsella, 956 F. Supp. 1409, 1413-14 (N.D. Ill. 1997) (holding
that a person cannot actively resist or evade arrest when he is
unaware that his arrest is imminent). As discussed above, when
Plaintiff opened his front door, Defendant told him that he was
there to search for Plaintiff's son, not to effectuate
Plaintiff's arrest. Thus, Plaintiff's verbal resistance was to
Defendant's warrantless entry into his home, not to Defendant's
attempt to arrest him.
More importantly, it is well-settled under Illinois law that a
person is not considered to be resisting arrest or obstructing
the police unless his or her resistance is physical; a mere
verbal assault on police officers will not suffice. Payne,
337 F.3d at 776 (collecting cases). This is because "a properly
trained officer may reasonably be expected to `exercise a higher
degree of restraint' than the average citizen, and thus be less
likely to respond belligerently to `fighting words.'" City of
Houston v. Hill, 482 U.S. 451, 462 (1987) (citation omitted) (holding that the First Amendment protects even
profanity-laden speech directed at police officers). Therefore, a
person is not deemed to be "resisting" merely because he verbally
challenges an officer's authority to enter and search his home
without a warrant. This form of verbal resistance to police
action can hardly justify an officer's use of force to effectuate
an arrest. As the Supreme Court declared in Hill, "[t]he
freedom of individuals verbally to oppose or challenge police
action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a
police state." Hill, 482 U.S. at 462-63.
Thus, the instant case does not involve an officer's arguable
judgment in subduing an individual who was physically resisting
arrest. It is under these tense, uncertain, and rapidly evolving
circumstances that officers are forced to make split-second
decisions as to how much force is necessary to effectuate an
arrest. See Tennen v. Shier, No. 94-C-2127, 1995 U.S. Dist.
LEXIS 9297, at *18-20 (N.D. Ill. June 30, 1995) (holding that the
use of force which harms the arrestee under non-threatening
circumstances is considered to be excessive because such an
arrest does not require force at all). As the Court stated in
Tennen, "[w]hen there is no resistance to arrest, it should be
clear to any officer that pushing, yanking, twisting and striking the arrestee is never necessary."
Tennen, 1995 U.S. Dist. LEXIS 9297, at *20 (emphasis added).
Although there remains a factual dispute as to whether
Plaintiff was "thrown" into the chair or merely "placed" there,
it is not one that this Court needs to resolve at this time. As
the Seventh Circuit pointed out, "[t]he Fourth Amendment protects
against unreasonable seizures, not seizures that `shock the
conscience' or cause `severe injuries.'" Herzog v. Vill. of
Winnetka, 309 F.3d 1041, 1043 (7th Cir. 2002) (citation
omitted). It is the unreasonable use of force itself which
crosses the constitutional threshold. Id. Thus, a jury could
easily find that under these circumstances no reasonable officer
would have used any force at all to effectuate Plaintiff's arrest
because the offenses for which he was arrested were minor, he did
not pose a threat to anyone's safety, and he did not resist or
attempt to evade arrest.
Finally, Defendant argues in the alternative that he is
entitled to qualified immunity. However, as the Court mentioned
above, it was clearly established at the time of Defendant's
actions that a reasonable officer would have known that pushing,
shoving, throwing, or "man-handling" an arrestee would be deemed
unreasonable when the arrestee has committed only minor offenses,
poses no threat to safety, and is not resisting or evading
arrest. See Payne, 337 F.3d at 779-80; Tennen, 1995 U.S. Dist. LEXIS 9297, at *18-20. As a result, Plaintiff has
succeeded in demonstrating that he has a better than negligible
chance of succeeding on the merits of his excessive force claim.
B. No Adequate Remedy at Law & Irreparable Harm
Although Plaintiff's excessive force and unreasonable search
and seizure claims may have merit, he is unable to carry his
burden of demonstrating that he has no adequate remedy at law and
will suffer irreparable harm if the Court does not issue a
preliminary injunction in his favor. As the Seventh Circuit aptly
noted, "[a]n injunction is an equitable remedy that does not
issue as a matter of course, but rather a remedy that courts may
grant at their discretion in the extraordinary situations where
legal remedies such as monetary damages are inadequate."
Bedrossian v. Northwestern Mem'l Hosp., 409 F.3d 840, 842 (7th
Cir. 2005) (emphasis added). The instant case, however, is not
one of those extraordinary situations where an award of monetary
damages would be inadequate. See Roland Mach.,
749 F.2d at 386 (stating that a damage award is inadequate for one of four
reasons: (1) it may come to late to save the plaintiff's company
from a competitor that is driving it out of business; (2) the
plaintiff may be unable to finance his lawsuit absent funds from
his business that the defendant is threatening to destroy; (3)
the defendant may be likely to become insolvent prior to the plaintiff's ability to collect on the final judgment; and (4) the
plaintiff's loss profits may be too difficult to calculate).
In fact, the only remedy that Plaintiff seeks in his amended
complaint is damages "in excess of $200,000.00 Two Hundred
Thousand dollars . . ." Thus, the question the Court must answer
is whether Plaintiff would be made whole if he prevailed on the
merits of his claims and was awarded damages. See Roland
Mach., 749 F.2d at 386. In answering this question, the Court is
concerned only with the period between now and the entry of a
final judgment; it is only the likelihood of irreparable harm in
the interim that is, harm that cannot be fully rectified by an
award of damages after trial that would warrant a preliminary
injunction. Id. at 391.
As Plaintiff correctly points out in his Motion:
The purpose of an injunction is to prevent future
violations, and, of course, it can be utilized even
without a showing of past wrongs. But the moving
party must satisfy the court that relief is needed.
The necessary determination is that there exists some
cognizable danger of recurrent violation, something
more than the mere possibility which serves to keep
the case alive.
United States v. W.T. Grant Co., 345 U.S. 629
, 633 (1953).
Plaintiff, however, fails to satisfy the Court that injunctive
relief is needed. He does not demonstrate the likelihood that
Defendant will continue to violate his constitutional rights
prior to the entry of a final judgment on the merits. The mere fact that Plaintiff's son is still at large does not support an
inference that Defendant is likely to search Plaintiff's home
again without a valid search warrant. Furthermore, if Defendant
obtains additional information that would warrant a reasonable
officer to believe that Plaintiff's son not only lives at 716 E.
Wilcox but at the time is present, then an arrest warrant in the
son's name would justify Defendant's entry into Plaintiff's home.
Absent some other indication that Defendant is likely to violate
Plaintiff's constitutional rights in the interim, a preliminary
injunction is inappropriate.
Moreover, even if Defendant were to again violate Plaintiff's
constitutional rights before the entry of a final judgment,
Plaintiff is unable to show how a damage award at the end of
trial would be inadequate to compensate him for the additional
harm suffered. Courts issue damage awards everyday for
Fourth Amendment violations. There is nothing inherently inadequate
about granting such relief. Thus, the issuance of a preliminary
injunction in this case would be inappropriate because Plaintiff
cannot satisfy the second and third preliminary injunction
factors. Although this fact alone is sufficient to support a
denial of Plaintiff's Motion, the Court will nevertheless briefly
address the remaining factors as instructed by the Seventh
Circuit. See Meridian Mut., 128 F.3d at 1121. C. Balancing the Irreparable Harms to Plaintiff & Defendant
The irreparable harm to Defendant if a preliminary injunction
is issued outweighs any irreparable harm that Plaintiff may
suffer if one is denied. As discussed above, Plaintiff is unable
to demonstrate that he would suffer any irreparable harm as a
result of the Court's denial of his Motion. On the other hand, if
the Court were to enjoin Defendant and his fellow officers from
knocking on Plaintiff's doors or entering and searching his home,
this may interfere with their ability to properly follow-up on
reasonable leads that would warrant such actions. Even if
Defendant were to ultimately prevail on the merits of Plaintiff's
claims, such a judgment would not cure the damage caused by the
interference of an on-going investigation and manhunt for
Plaintiff's fugitive son. Thus, this factor weighs against
Plaintiff and his Motion for a preliminary injunction.
D. Public Interest at Stake
Finally, in addition to the irreparable harm that Defendant
would suffer if the Court were to issue a preliminary injunction,
the public interest at stake is even greater. The issuance of a
preliminary injunction could serve to shield Plaintiff from
further accountability for his criminal acts. This shield would
also allow Plaintiff to harbor fugitives, such as his son. In
essence, if courts were to grant preliminary injunctions against police officers for run-of-the-mill
unreasonable search and seizure claims or excessive force claims,
this would inevitably frustrate the legitimate ends of law
enforcement to protect the public from those who choose to
violate the law. Therefore, in the instant matter, the public has
a strong interest in the Court's denial of Plaintiff's Motion for
a preliminary injunction.
In order to prevail on a motion for preliminary injunction, the
plaintiff must satisfy each element of the five-part test. While
Plaintiff has demonstrated a reasonable likelihood of success on
the merits of his excessive force and unreasonable search and
seizures claims, he has failed to satisfy the other four
preliminary injunction factors. Thus, Plaintiff's Motion for
Temporary Restraining Order and/or Preliminary Injunction [Doc.
#19] must be DENIED. Likewise, because his second Motion merely
duplicates the arguments addressed in his first Motion,
Plaintiff's Further Motion for Temporary Restraining Order and/or
Preliminary Injunction [Doc. #21] must also be DENIED.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Temporary
Restraining Order and/or Preliminary Injunction [Doc. #19] is
DENIED. IT IS FURTHER ORDERED that Plaintiff's Further Motion for
Temporary Restraining Order and/or Preliminary Injunction [Doc.
#21] is DENIED.
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