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Johnson v. City of Prospect Heights

March 21, 2008


The opinion of the court was delivered by: Honorable David H. Coar


Plaintiff Richard Johnson ("Johnson") is suing the City of Prospect Heights, several city officials, police officers, city attorneys and an Illinois state judge, for infringement upon his constitutionally and otherwise federally protected rights, arising from the use of real property. Count 2 of the Complaint alleges a violation of the Fourth Amendment and violation of 42 U.S.C. § 1983. Count 9 of the Complaint contains allegations that the Defendants harassed the Plaintiff, trespassed on his property and abused police authority; all in contravention of Illinois state law.

Defendants City of Prospect Heights, Steve Skiber and Rodney Erb now move this Court for summary judgment pursuant to Federal Rule of Civil Procedure 56. First, Defendants contend that Officer Erb is entitled to an affirmative defense of qualified immunity. Second, Defendants assert Johnson has failed to present facts demonstrating the existence of a policy or custom of constitutional or civil rights violations. Third, Defendants assert that Johnson's state law claims are barred by the respective statutes of limitations, various immunities, and Johnson's lack of standing. Johnson also moves this Court for summary judgment on the issues of whether Officer Erb and the City violated the Fourth Amendment and subjected Johnson to an unreasonable search. For the reasons stated below, Defendants' motion for summary judgment is GRANTED in part and Johnson's motion for summary judgment is DENIED.


An entity called Anderson Acquisition Trust (the "Trust") purchased real property located at 1015 Drake Terrace, Prospect Heights, Illinois (the "Property") as shown by warranty deed made effective as of November 5, 2002. At or near this time Johnson came to be a "possessor" of the property. Johnson does not claim to be a beneficiary of the Trust. At all times prior to these summary judgment proceedings, Johnson claimed to own the Property. He now concedes that he does not now own nor did he ever own the Property, he did not acquire it personally, nor was he ever a tenant. He claims that he was simply a "possessor" of the Property at all times relevant to the events at issue in this case, frequently along with other "possessors," such as Daniel Bender. At some point, Johnson undertook construction on the Property. Johnson also posted signs on the property directing the public to keep out and that entry unto the property would result in a land use fee of $5000.

By September 2003, the City of Prospect Heights (the "City") became aware of the construction occurring on the Property and on September 27th and 30th, notices were sent to the Property directing the residents or owners to contact Steve Skiber, the Building Director of the City regarding the construction taking place at the Property. On October 4, 2003, Mr. Skiber issued an order to stop work on the property, as he is authorized to do under the City's municipal code. That work order was subsequently found to be valid by a Cook County Circuit Court. In or around April of 2005, Skiber entered the Property and posted stop work orders and building code violations. Also during this time period, Skiber and unknown officers of the City entered onto the Property pursuant to an administrative search warrant to check the Property for mold. The search warrant was held to be valid by another Illinois Circuit Court of Cook County in May of 2005.

A stop work order was issued on October 4, 2003 directing all construction occurring at the Property to immediately halt. On October 5, 2003, a Sunday, the City's dispatch center dispatched Officer Erb to the Property in response to a call from someone claiming that construction was taking place on there. The City had in force at the time municipal ordinances that prohibited construction on sundays, construction done without a permit and construction in defiance of a stop work order. Upon his arrival, Officer Erb heard noises emanating from the rear of the Property that he identified as construction noises. He then went to the front door of the Property and knocked but no one responded. He then walked around to the rear of the Property via an adjacent driveway on the side of the Property. Officer Erb passed through a gate into the rear of the Property where he encountered the Plaintiff. There is some dispute over whether Officer Erb entered a garage before talking to the Plaintiff or afterwards. Nevertheless, Officer Erb admits that at some point he did enter the garage without permission. The garage was attached to the home and there was a door leading inside the home. It is disputed on whether Officer Erb entered the house or not. Officer Erb claims he did not enter the house. Johnson claims he stood in the doorway of the house.

Officer Erb asked Plaintiff several questions about the house, such as who owned it and what was going on, but the Plaintiff refused to answer. Officer Erb observed construction in progress. He also observed several others on the premises, who he identified as workers.

Plaintiff pulled out a video camera, handed it to one of the other people on the Property and that person began recording. Plaintiff ordered Officer Erb to leave his property. Officer Erb responded by backing out of the garage and requesting Plaintiff to accompany him to the front of the home. Plaintiff went to the front of the home under no visible force or duress.

The parties submitted a videotape that records some of the events of October 5, 2003. In the videotape Officer Erb and Johnson are clearly seen in the rear of the Property arguing over the propriety of the construction. Johnson is asserting that Officer Erb's presence is a violation of the Fourth Amendment and Officer Erb is disagreeing. Also, the videotape clearly shows an exposed area near the garage where some sort of remodeling was being done, and one can hear hammering in the background. Officer Erb unmistakenly asks Johnson, "Why don't we go around front?" The two then begin walking to the front. Officer Erb later explained during a deposition that he felt outnumbered in the rear of the Property. In the videotape Officer Erb is not yelling or forcing Johnson to do anything. Officer Erb placed his hand on Johnson's shoulder twice, but he was not pushing Johnson or otherwise exerting force on him.

Officer Erb and Johnson continued their discussion in the front of the Property near Officer Erb's police vehicle. During the discussion Johnson placed his right hand behind his back and underneath his jacket for a few seconds. Several times, Johnson looked around nervously with frustration. A few moments later, Johnson places his hands on the rear of the police vehicle and Officer Erb is seen patting Johnson down. The pat down lasted for a few seconds. Thereafter the two men continue talking and finally Johnson walks away back toward the Property.

On September 27, 2006, this Court issued a Memorandum Opinion and Order dismissing Counts 1 and 3 through 8 of the Complaint on the basis that the Court did not possess jurisdiction to review and render void decisions of the Illinois courts. Counts 2 and 9 survived and are discussed below.


Summary judgment is appropriate 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). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts (a "scintilla of evidence" is insufficient) demonstrating that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 252; see also Celotex, 477 U.S. at 324. When reviewing a ...

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