The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Sunday Uwumarogie, acting on behalf on himself and the estate of his late son, Benjamin Uwumarogie ("Benjamin"), has sued the Village of Glen Ellyn, Glen Ellyn police officer Jason Bradley, and other unknown police officers, alleging that they violated Benjamin's federal constitutional rights and violated his family's rights under Illinois law. The Village and Bradley have moved for summary judgment, and for the following reasons, the Court grants the motion in part and denies it in part.
This case involves Bradley's fatal shooting of Benjamin on April 26, 2006 during a response to a domestic violence call. Because defendants have moved for summary judgment, the Court views the facts in the light most favorable to plaintiff and draws reasonable inferences in his favor. See, e.g., DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987).
On the evening of April 26, 2006, Benjamin's girlfriend placed a 911 call to report domestic violence in progress at the Iron Gate Apartments in Glen Ellyn, Illinois. The police dispatch recording from that day indicates that the caller told the dispatcher that Benjamin was hurting a baby. Two police officers were assigned to the call; Bradley arrived at the apartment complex first, approximately two minutes after the call went out. Bradley says that he found the subject-Benjamin-standing naked and unarmed in the courtyard. Bradley approached Benjamin, attempted unsuccessfully to grab and arrest him, and discharged pepper spray into Benjamin's face. Bradley says that Benjamin told Bradley that he was going to have to do better than that in order to stop him. Benjamin then entered a ground-floor apartment. From the door of the apartment, Bradley saw a heavy-set man and a baby (later identified as Benjamin's son) standing against the wall near the door. Seeing Benjamin pick up the baby and run toward the back of the apartment, Bradley followed. He reported to dispatch that Benjamin had picked up a child and that he needed back-up.
What happened next is disputed. Bradley contends that Benjamin slipped and fell outside of the apartment's bathroom, dropping the baby in the process. Benjamin then picked up the child and took it into the bathroom. Bradley followed them into the bathroom where he saw the two of them in a full bathtub. Bradley says that Benjamin was holding the baby under the surface of the water and indeed, approximately twenty seconds after he reported that Benjamin had picked up the child, he reported over his radio to dispatch, "He's trying to drown the kid." See Pl. Resp. to Def. LR 56.1 St., Ex. F at 8:2. Plaintiff denies that Benjamin was trying to drown his son in the bathtub and suggests that Benjamin was instead washing pepper spray out of his son's eyes.*fn1
Bradley says he told Benjamin to let go of the baby and in an attempt to get him to do so, struck Benjamin with his closed fist and forearms in the back of the neck and kidneys. While water overflowed from the tub, Bradley continued striking and yelling at Benjamin. According to Bradley, Benjamin started swinging his arm to hit back at him. By stepping into the tub with one leg for leverage, however, Bradley was able to pull the baby out of the tub. He says that Benjamin continued to strike at him from the bathtub, hitting him in the face, neck and chest.
At that point, Bradley says, he turned and saw the heavy-set man standing in the doorway of the bathroom. He asked the man-who has not been further identified by either party-for help. The man eventually responded by pulling Bradley away from the tub by tugging at the back of his shirt and bullet-proof vest, a maneuver that made Bradley unsure of the man's intentions. When Bradley asked the man to take the baby outside to the waiting paramedics, however, he complied. With the baby gone, Bradley, who was still kneeling outside of the tub, was able to put his arms around Benjamin, restrain his hands, and radio to dispatch that he had the subject but was unable to handcuff him. Slightly less than a minute had passed since his earlier dispatch reporting that Benjamin was trying to drown the baby.
Forty seconds later-approximately fifteen seconds after backup officers had arrived but were unable to locate Bradley and Benjamin, the dispatch tape records Bradley reporting that shots had been fired. Bradley offers the following account of those forty seconds. First, because Benjamin briefly calmed down, Bradley intended to hold on to him and wait for assistance to help him take Benjamin into custody. Moments later, however, Benjamin threw his head back, striking Bradley in the nose. When Bradley turned his head to the side to avoid being struck again, Benjamin threw his head back for the second time, this time hitting the right side of Bradley's face. The third time Benjamin threw his head back, Bradley successfully avoided him, but in the process, he lost his grip on Benjamin. Benjamin then stood up and struck Bradley, who was still kneeling, in the face. Bradley stood up and punched Benjamin in the face twice. Benjamin responded with a flurry of punches as he got out of the bathtub, making what Bradley characterized as Bruce Lee noises. Bradley backed away with his hands up to guard his face, unable to return any punches. As he backed out of the bathroom, he stumbled, successfully bracing himself against the wall to keep from falling. With his hands down to brace himself, Bradley says he was struck in the face by several of Benjamin's punches.
Bradley says he backed away from Benjamin towards the bedroom of the apartment, struck his head on the door frame, and stumbled into the bedroom. As Benjamin continued to follow him, Bradley backed into the bed and fell into a seated position on the bed. He says he was able to scoot backwards into the middle of the bed before Benjamin jumped on top of him and straddled him. Unable to move under Benjamin's weight, Bradley then says he received many blows to the head, causing him to see white lights and stars and his vision to blur and blacken. Bradley also testified that he covered his face with his hands and pulled his elbows down towards his belt to protect his gun. When he felt that he was losing consciousness and could not escape from Benjamin's blows, Bradley pulled his gun from his holster. As Benjamin began to choke him with one hand and to punch him with the other, Bradley pulled the trigger, striking Benjamin in the face. Benjamin fell on top of him.
Bradley rolled Benjamin off of him, got off the bed, and pointed his gun at him again. After a few seconds, he realized that Benjamin was not moving and heard a gurgling sound. Bradley then scanned the room to see if anyone else was around, reloaded his pistol, and checked Benjamin for a pulse. He found none and administered no first aid to Benjamin. The paramedics, who had been staged outside, began to enter the room, and Bradley left the apartment to get into an ambulance. A coroner pronounced Benjamin dead that evening, finding, after an autopsy, that he had died instantly of a gunshot wound to the head.
Plaintiff's complaint includes six claims, two of which (counts three and four) he has withdrawn. The first one is a claim under 42 U.S.C. § 1983; Plaintiff alleges that Bradley violated Benjamin's rights under the Fourteenth Amendment to the Constitution. Compl. ¶¶ 10-16. Count two is a Monell claim against the Village. Id. ¶¶ 17-24. In count five, plaintiff advances a claim against all defendants under the Illinois Wrongful Death Act, 740 ILCS 180/1-2. Compl. ¶¶ 39-43. Finally, count six is a claim against the Village under the Tort Immunity Act, 745 ILCS 10/2-207 & 1-210. Compl. ¶¶ 44-47.
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 judgment as a matter of law." Fed. R. Civ. P. 56(c). To determine whether a genuine issue of material fact exists, the Court must view the record in the light most favorable to the nonmoving party and draw reasonable inferences in its favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). A genuine ...