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Quade v. Kaplan

March 31, 2008

WILLIAM QUADE, PLAINTIFF,
v.
SEAMUS A. KAPLAN, VILLAGE OF MUNDELEIN AND MUNDELEIN POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff William Quade ("Quade" or "Plaintiff") filed suit against defendants Seamus A. Kaplan, the Village of Mundelein, and the Mundelein Police Department alleging excessive force in violation of the Fourth Amendment, 42 U.S.C. § 1983 and battery. The Court previously dismissed the Mundelein Police Department from the action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Seamus Kaplan and the Village of Mundelein (collectively "Defendants") now move for summary judgment on all claims. For the reasons set forth below, Defendant Kaplan's Motion for Summary Judgment is denied. The Village of Mundelein's Motion for Summary Judgment is granted in part and denied in part.

STATEMENT OF UNDISPUTED FACTS

This Complaint arises out of an incident that occurred in the early hours of March 21, 2005, when Mundelein Police Officer Seamus A. Kaplan ("Kaplan") shot at William Quade's ("Quade" or "Plaintiff") vehicle several times, lodging two bullets in Quade's back.*fn1 (Pl. Resp. 56.1 Kaplan ¶¶ 12-13, 70.) Officer Kaplan alleges that he fired the shots in self-defense of Quade's actions on the scene - specifically, that Quade attempted to run him over with his car. Quade alleges he was not under arrest and the force used to stop him from leaving the scene was excessive.

Kaplan has been employed by the Village as a police office for the past five and one-half years. (Pl. 56.1 Resp. Village ¶ 3.) Prior to joining the Mundelein Police Department ("the Department"), Kaplan worked as a police officer for the Village of Lake Bluff until he was terminated for his failure to follow direct orders.*fn2 (Pl. 56.1 Resp. Village ¶ 4; Def. Vill. 56.1 Resp. ¶ 1.) While employed by the Village of Lake Bluff, Kaplan attended the Police Academy, the Police Training Institute ("PTI") at the University of Illinois, and the Field Training Officer ("FTO") program. (Pl. 56.1 Resp. Village ¶ 5.) Because he had already completely his academic training when he joined the Department, the Department placed Kaplan in an FTO program for three months. (Pl. 56.1 Resp. Village ¶ 6.)

Throughout his employment with the Department, Kaplan received several written warnings and reprimands. (Def. Village 56.1 Resp. ¶ 3; Pl. 56.1 Resp. Village, Ex. B, Mundelein Police Department Personnel Records.) Department officials also explicitly questioned Kaplan's decision-making ability in Kaplan's personnel records and, on one occasion, suspended Kaplan after Kaplan failed to report for his assigned detail at a high school homecoming parade. (Pl. 56.1 Resp. Village ¶¶ 4, 6; Pl. 56.1 Resp. Village, Ex. B, Mundelein Police Department Personnel Records.) In addition, police department officials have utilized several performance improvement plans and counseling sessions in an attempt to improve Kaplan's shortcomings as a police officer. (Def. Village 56.1 Resp. ¶ 5.)

On March 20, 2005, Quade, then eighteen years-old, gathered at his home in Chicago, Illinois with David Moore ("Moore") and Robert Diaz ("Diaz"). (Pl. 56.1 Resp. Kaplan ¶¶ 2, 6.) Between the hours of 5:00 p.m. (at the earliest) and 11:00 p.m. to 11:30 p.m. (at the latest), Quade snorted one line of cocaine and consumed approximately one-half of a fifth of brandy and between seven to eight and one-half beers. (Pl. 56.1 Resp. Kaplan ¶¶ 5, 8, 11.) At the end of the night, Quade (accompanied by Moore) drove Diaz to his home in Vernon Hills. (Pl. 56.1 Resp. Kaplan ¶¶ 12-13.)

On the return trip, Quade became lost. (Pl. 56.1 Resp. Kaplan ¶ 14.) While stopped at a red light, Quade decided to ask Officer Hall, a Mundelein police officer who was also stopped at the light, for directions. (Pl. 56.1 Resp. Kaplan ¶ 14-16.) During the conversation, Officer Hall developed a suspicion that Quade was under the influence of an unknown substance. (Pl. 56.1 Resp. Kaplan ¶¶ 15, 17-18.) Officer Hall and Quade continued to discuss directions when the traffic signal turned from red to green. (Pl. 56.1 Resp. Kaplan ¶ 19.) To avoid holding up traffic, Officer Hall told Quade to pull into a nearby parking lot. (Id.) Officer Hall activated his emergency lights and followed Quade to the lot. (Pl. 56.1 Resp. Kaplan ¶ 20.) Quade drove to the parking lot as instructed and stopped his car approximately ten feet from the lot's entrance. (Pl. 56.1 Resp. Kaplan ¶¶ 21, 23.) The lot entrance was the only means of ingress or egress to the parking lot. (Pl. 56.1 Resp. Kaplan ¶ 22.) The parking lot spanned an area ofapproximately sixty feet by sixty feet.*fn3 (Pl. 56.1 Resp. Kaplan ¶ 22; Def. Kaplan 56.1, Ex. C, Hall Dep. at 77-78.) A building ran along the north side of the lot and a line of trees bordered the east side. (Pl. 56.1 Resp. Kaplan ¶ 22.) The entrance/exit of the lot was located on the west side. (Id.)

Officer Hall pulled up alongside of Quade. (Pl. 56.1 Resp. Kaplan ¶¶ 21, 23.) At some point, Officer Hall contacted dispatch and requested the assistance of a second police officer. (Pl. 56.1 Resp. Kaplan ¶ 26.) When the call for backup came through the radio, Kaplan heard Officer Hall request a second unit and heard him indicate that there was "no hurry." (Pl. 56.1 Resp. Kaplan ¶ 27.) According to Kaplan, "no hurry" typically means that the officer has a stop that is suspicious, has a possible DUI, or wants to search the stopped vehicle. (Id.; Def. Kaplan 56.1, Ex. D, Kaplan Test. 109-10.) Kaplan did not know why Officer Hall stopped Quade when he responded to the call. (Def. Kaplan 56.1 Resp. ¶ 3.)

After contacting dispatch, Officer Hall approached the driver's side of Quade's vehicle. (Pl. 56.1 Resp. Kaplan ¶ 29.) The parties dispute whether, upon reaching the vehicle, Officer Hall asked Quade for his license and to exit his vehicle. (Pl. 56.1 Resp. Kaplan ¶¶ 29-30, 33; Def. Kaplan 56.1, Ex. C, Hall Dep. at 84-86; Pl. 56.1 Resp. Kaplan, Ex. C, Quade Dep. at 39.) Shortly after, Quade put the car's gear shift in drive, accelerated very quickly towards the rear of the parking lot, and drove forward approximately fifty feet (to the eastern edge of the parking lot). (Pl. 56.1 Resp. Kaplan ¶¶ 35, 37.) At the same time, Mundelein police officer Eric Guenther ("Commander Guenther") arrived on the scene. (Id.) Upon pulling into the parking lot, Commander Guenther observed Quade's vehicle in motion. (Pl. 56.1 Resp. Kaplan ¶ 39.) In response, Commander Guenther drove to the northeast portion of the parking lot and stopped his vehicle, an SUV, approximately one foot from Quade's vehicle in an attempt to block Quade. (Pl. 56.1 Resp. Kaplan ¶¶ 39-40.) During this time, Quade stopped his forward movement and began to back up towards the southeast corner of the parking lot. (Pl. 56.1 Resp. Kaplan ¶ 40.) Officer Hall ran towards Quade's vehicle and ordered Quade to stop. (Pl. 56.1 Resp. Kaplan ¶ 42.) Shortly after, Kaplan entered the parking lot. (Id.)

Prior to entering the lot, Kaplan saw Commander Guenther activate his lights and enter the lot. (Pl. 56.1 Resp. Kaplan ¶ 44.) Upon entering the lot, Kaplan observed: (1) Quade's vehicle in motion; (2) Officer Hall standing next to Quade's vehicle; and (3) Commander Guenther blocking Quade's attempt to exit the parking lot with his car. (Pl. 56.1 Resp. Kaplan ¶ 45.) Kaplan stopped his vehicle in the southeast portion of the lot and exited his vehicle, (Pl. 56.1 Resp. Kaplan ¶¶ 46, 48), pulled out his gun, and ran to the rear of Commander Guenther's SUV. (Pl. 56.1 Resp. Kaplan ¶¶ 47, 51.) At that time, he did not know why Officer Hall initially stopped Quade. (Pl. 56.1 Resp. Kaplan ¶ 46; Def. Kaplan 56.1 Resp. ¶ 3.) Simultaneously, Officer Hall walked past Kaplan and towards Quade's vehicle, which was still positioned in the southeast corner of the parking lot. (Pl. 56.1 Resp. Kaplan ¶ 48.) With his gun drawn, Officer Hall yelled at Quade to turn off and exit his vehicle (Pl. 56.1 Resp. Kaplan ¶¶ 48-49.)

As Officer Hall approached Quade, Kaplan continued his movement towards the rear of Commander Guenther's SUV. (Pl. 56.1 Resp. Kaplan ¶¶ 53; Kaplan 56.1 Resp. ¶ 4.) Commander Guenther had parked the SUV approximately twelve to fifteen feet from the building that ran along the north end of the parking lot. (Pl. 56.1 Resp. Kaplan ¶ 54.) Despite Commander Guenther's orders to stop, Quade began to slowly drive his car around the front of Commander Guenther's SUV. (Pl. 56.1 Resp. Kaplan ¶¶ 53, 55; Def. Kaplan. 56.1 Resp. ¶ 4.) While doing so, Quade kept himself as close as possible to the building located on the north side of the lot. (Kaplan 56.1 Resp. ¶ 6.) Fearing that Quade's vehicle would not fit in the space between Commander Guenther's vehicle and the building, Commander Guenther, who was not fully out of his SUV, went back inside his SUV and shut the door. (Pl. 56.1 Resp. Kaplan ¶ 56.) Because he could not see Quade, Officer Hall then ran towards his squad car, which was still parked near the parking lot's exit. (Pl. 56.1 Resp. Kaplan ¶¶ 57-58.)

As Kaplan came around the rear of Commander Guenther's vehicle he observed Quade turning his vehicle around the front of Guenther's vehicle and towards the exit. (Pl. 56.1 Resp. Kaplan ¶ 61.) During this time, Kaplan also observed Officer Hall running towards the area of Officer Hall's squad car. (Pl. 56.1 Resp. Kaplan ¶ 60.) Quade admits that he saw Kaplan at the rear of the SUV, but the parties dispute how far Kaplan positioned himself from the rear of Officer Guenther's SUV. (Pl. 56.1 Resp. Kaplan ¶¶ 59, 61; Kaplan 56.1 Resp. ¶ 4; Def. Kaplan 56.1, Ex. G, Kaplan Dep. at 65; Pl. 56.1 Resp. Kaplan, Ex. C, Quade Dep. at 53-54; Pl. 56.1 Resp. Kaplan, Ex. H, Guenther Dep. at 68.) Kaplan contends that he came around the SUV and placed himself near the rear fender of the SUV. (Pl. 56.1 Resp. Kaplan ¶¶ 59, 61; Def. Kaplan 56.1, Ex. G, Kaplan Dep. at 65, 71.) Quade testified that Kaplan positioned himself approximately ten feet from the rear of the SUV. (Pl. 56.1 Resp. Kaplan, Ex. C, Quade Dep. at 53-54.) Upon seeing Quade's vehicle, Kaplan stopped his forward movement, yelled, "stop or I will shoot," and began to back away. (Pl. 56.1 Resp. Kaplan ¶¶ 62-63.)

The parties dispute what occurred after Kaplan ordered Quade to stop. Kaplan testified that, in response to his order, Quade lay down over the center console of his vehicle, turned his wheel left, accelerated forward toward Kaplan, and struck Kaplan with his car in the left knee and left side of his leg. (Pl. 56.1 Resp. Kaplan ¶¶ 64-65; Def. Kaplan 56.1, Ex. G, Kaplan Dep. at 75-77.) In one fluid motion, Kaplan then braced himself with his left hand on the left side hood and fender of Quade's vehicle, ordered Quade to stop, pushed off the vehicle, and fired his weapon six times. (Pl. 56.1 Resp. Kaplan ¶ 65; Def. Kaplan 56.1, Ex. G, Kaplan Dep. at 77-80, 88, 112.)

Quade denies that he drove towards Kaplan, that he lay over the center console before Kaplan began to fire, or that he ever struck Kaplan. (Pl. 56.1 Resp. Kaplan ¶¶ 64-65; Pl. 56.1 Resp. Kaplan, Ex. C, Quade Dep. at 53-55, 103; Def. Kaplan 56.1 Resp. ¶ 6.) According to Quade, Quade moved forward after clearing the SUV and stayed as close as possible to the building on the north side of the lot. (Pl. 56.1 Resp. Kaplan ¶ 65; Pl. 56.1 Resp. Kaplan, Ex. C, Quade Dep. at 53-55; Def. Kaplan 56.1 Resp. ¶¶ 5-6.) At some point, Quade accelerated forward, drove past Kaplan, and was pulled down over the center console by Moore because (and only after) Kaplan began shooting at the car.*fn4 (Pl. 56.1 Resp. Kaplan ¶ 64; Def. Kaplan 56.1 Resp. ¶ 6; Pl. 56.1 Resp. Kaplan, Ex. C, Quade Dep. at 52-54.)

It is undisputed that Kaplan was not in front of Quade's vehicle when he fired at Quade. (Def. 56.1 Resp. Kaplan ¶ 7.) Kaplan began to shoot only after the front of Quade's vehicle passed him. (Def. 56.1 Resp. Kaplan ¶ 8.) At that time, Kaplan remained to the left of Quade's vehicle and behind the vehicle's front bumper. (Def. 56.1 Resp. Kaplan ¶ 7.) Kaplan braced himself against the hood and fender of Quade's vehicle, pushed off the car, and fired his weapon at Quade's vehicle. (Pl. 56.1 Resp. Kaplan ¶ 66; Def. Kaplan 56.1 Resp. ¶¶ 7-8.) Kaplan's initial shots went through the driver's side window. (Def. Kaplan 56.1 Resp. ¶ 8; Pl. 56.1 Resp. Kaplan ¶ 66.) The vehicle continued past Kaplan as he continued to shoot. (Pl. 56.1 Resp. Kaplan ¶ 66.) Kaplan fired at least one shot after Quade passed Kaplan and at least one shot that shattered the back window of Quade's vehicle. (Def. 56.1 Resp. Kaplan ¶¶ 13-14.) Two of the shots fired by Kaplan struck Quade in the back. (Pl. 56.1 Resp. Kaplan ¶ 70; Def. Kaplan 56.1 Resp., Ex. A, Quade Dep. at 65; Pl. Resp. 56.1 Kaplan, Ex. G, Hunt Dep. at 50.)

The parties dispute how many shots were fired during the incident in question; Kaplan testified that he fired six shots at Quade, while Quade submits that additional shots were fired. (Pl. 56.1 Resp. Kaplan ¶ 67; Pl. 56.1 Resp. Kaplan, Ex. I, Owen Dep. at 34, 36.) The parties also dispute how long it took Kaplan to fire the shots; Kaplan contends it lasted less than one second while Quade maintains that it may have taken up to three seconds. (Pl. 56.1 Resp. Kaplan ¶ 67; Pl. 56.1 Resp. Kaplan, Ex. F, Waller Dep. at 207; Kaplan 56.1 Resp., Ex. G, Kaplan Dep. at 112.) It is undisputed that Kaplan remained stationary as he fired each shot. (Def. Kaplan 56.1 Resp. ¶ 10; Pl. 56.1 Resp. Kaplan ¶ 75; Pl. 56.1 Resp. Kaplan, Ex. D, Kaplan Dep. at 92.)

After shooting at Quade, Officers Hall and Kaplan chased Quade's vehicle towards the exit of the parking lot. (Pl. 56.1 Resp. Kaplan ¶ 71.) Quade, still in his vehicle, proceeded over a curb out of the parking lot and accelerated down the road. (Pl. 56.1 Resp. Kaplan ¶¶ 71, 78.) Quade eventually came to a stop in a ditch and was arrested. (Pl. 56.1 Resp. Kaplan ¶¶ 80, 84.)

Kaplan testified that, as he shot at Quade, he feared for himself, Officer Hall, and the public. With respect to himself, Kaplan testified that he feared for his life when he fired his weapon because he believed that Quade would run him over and kill him. (Pl. 56.1 Resp. Kaplan ¶¶ 74-75; Def. Kaplan 56.1, Ex. G, Kaplan Dep. at 111.) In addition, he feared that he would be run over if he fell and, when he pushed off the car, did not know whether he would land on his feet. (Pl. 56.1 Resp. Kaplan ¶ 75; Def. Kaplan 56.1, Ex. G, Kaplan Dep. at 111.)

Kaplan also fired at Quade because he believed the Quade would possibly drive behind Kaplan and run over Officer Hall. (Pl. 56.1 Resp. Kaplan ¶ 74.) Kaplan testified that he saw Officer Hall running towards his squad car when Kaplan initially ran around the back of Commander Guenther's SUV, but did not see Officer Hall when Kaplan began firing at Quade. (Pl. 56.1 Resp. Kaplan ¶¶ 60, 70, 77.) The parties dispute, however, the extent of Kaplan's belief that Officer Hall was located behind him. (Pl. 56.1 Resp. Kaplan ¶¶ 74, 77; Pl. 56.1 Resp. Kaplan, Ex. B, Criminal Trial Transcript at 169; Def Kaplan 56.1, Ex. G, Kaplan Dep. at 88-89.) Finally, when asked if he fired at the vehicle because he feared for the safety of the public, Kaplan responded as follows: "Yes, I was also firing for the safety of Officer Hall." (Pl. 56.1 Resp. Kaplan ¶ 76; Def. Kaplan 56.1, Ex. G, Kaplan Dep. at 114.)

Village Policies and Procedures

Every Mundelein police officer must attend a yearly"use-of-force" training session, which includes recertification. (Pl. 56.1 Resp. Village ¶¶ 11, 15; Def. Village 56.1 Resp., Ex. C, Parrish Dep. at 27.) In addition, the Department also provides "controlled force" and "controlled tactics" training as well as "less lethal use-of-force" training. (Pl. 56.1 Resp. Village ¶ 8; Def. Village 56.1 Resp., Ex. A, Kaplan Dep. at 123, 125.) Finally, the Department also provides "a daily training calendar at roll call." (Pl. 56.1 Resp. Village ¶ 12.) "Use of force" is one of the items reviewed during the roll call training. (Def. Village 56.1 Resp., Ex. B, Eugenis Dep. at 8.) During a roll call training concerning the use of force, a police officer will convene with the rest of his shift and the supervisor will review the "Use of Force General Order" with the officers. (Pl. 56.1 Resp. Village ¶ 12; Def. Village 56.1 Resp., Ex. B, Eugenis Dep. at 8-9.) According to Sergeant Mark Parrish ("Sergeant Parrish"), who conducts in-service training for less-lethal force and instructs the yearly use of force class, "use of force" training could also include watching videos and reviewing policies or portions of certain policies to be sure that the officer understands them. (Pl. 56.1 Resp. Village ¶¶ 13, 14; Def. Village 56.1, Ex. C, Parrish Dep. at 6, 18-19.)

STANDARD OF REVIEW

Summary judgment is proper when "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake ...


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