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Ebert v. Village of Kildeer

March 31, 2009


The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow


Plaintiff, Norman Ebert, filed an eleven-count complaint against defendants, Village of Kildeer and Officer Andrew Weber, asserting claims under 42 U.S.C. § 1983 for unreasonable seizure (Count I), unreasonable search and seizure (Count II), false arrest (Count III), excessive force (Count IV), and illegal searches of person (Counts V and VI), as well as two Monell claims against the Village of Kildeer (Counts VII and VIII) and state law claims for malicious prosecution (Count IX), respondeat superior (Count X), and indemnification pursuant to 745 Ill. Comp. Stat. 10/9-102 (Count XI). The court has jurisdiction to hear this case pursuant to 28 U.S.C. §§ 1331 and 1343 for the federal civil rights claims and 28 U.S.C. § 1367(a) for the supplemental state law claims.

Before the court is defendants' amended motion for summary judgment. For the following reasons, the motion [#67] will be granted in part and denied in part.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in the depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) & advisory committee's notes.

The party seeking summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at 598--99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).


At around 4:00 P.M. on October 25, 2006, Andrew Weber, an officer of the Village of Kildeer Police Department, was radioed by dispatch about a reckless driver headed south on Rand Road (which is also known as Route 12). Dispatch had received a 911 emergency call from an anonymous woman who complained that a large white truck with no license plate and the words "Kolstad Parts and Service Truck Equipment" on the mud flaps had driven into oncoming traffic to make an illegal left turn onto Rand Road. Shortly thereafter, Weber (who was in the area when he was radioed by dispatch) located the car of the complainant (who was still on the phone with dispatch) and drove alongside her car. According to Weber, the caller gestured towards a white truck in front of her. Weber noticed that the truck did not have a rear plate and pulled the vehicle over.

The truck was driven by Ebert, a 44-year-old truck driver. Weber has testified that when he approached the truck, he noticed that Ebert had sunglasses perched above his eyebrows and that his eyes were "pinpoint." Ebert, on the other hand, has testified that his sunglasses were covering his eyes at that time.

Weber then informed Ebert that his truck did not have a rear license plate and asked him to exit the truck so that they could speak at the back of the truck. At about the same time, Greg Abshire, another officer of the Village of Kildeer Police Department, arrived as backup.

Officer Weber has testified that once out of the truck, Ebert's sunglasses were covering his eyes, and Weber asked Ebert to remove them, whereupon Weber again noticed that his pupils were constricted. Weber does not dispute that his pupils were constricted, but argues that there was bright sunlight at the time and cites Officer Abshire's testimony that sunlight will constrict pupils (which, Ebert further contends, is an "indisputable fact"). Pl.'s Resp. to Defs.' SoF ¶ 15.

Weber asked Ebert if he had taken illegal drugs, and Ebert said that he had not. Ebert did disclose to Weber, however, that he was on three separate prescription medications-Glucotrol for Type 2 diabetes, Altace for high blood pressure, and Vitorin for cholesterol.

Officer Weber, who has not received training in the area of drug recognition, then administered a number of tests used to determine whether someone has been driving under the influence of alcohol or drugs. First, the officer*fn1 performed a Horizontal Gaze Nystagmus ("HGN") test, which Ebert passed.

Second, Weber administered a "walk-and-turn" (a.k.a., "heel-to-toe") test. During the test, Ebert never fell or lost his step, though he admits he did have to regain his balance once by moving his arms back and forth. Also, according to Weber, Ebert stepped off of the line once.

Third, Weber performed the "one-leg-stand" test, in which the subject must stand on one leg for 30 seconds. According to Weber's deposition testimony, Ebert passed the test and did not show any "clues" indicating intoxication.*fn2 Defs.' SoF, Ex. A (Weber's Dep.), at 58:13--14.

Fourth, Weber administered the Romberg Test, during which Ebert was asked to close his eyes, lean his head back, and estimate what he feels like thirty seconds is. According to Weber, what Ebert believed to be 30 seconds was in fact 37 seconds, which indicated possible drug impairment. Ebert, however, has testified that he believes he passed the test.

Fifth, Weber asked Ebert to stand in the shade for a few minutes, so that his eyes would be out of the sun, and then measured Ebert's pupils using a pupil card. According to Weber, Ebert's pupils were less than 3 millimeters, whereas the normal level of pupil constriction is 3 to 6 millimeters. Here again, Weber argues that sunlight will constrict pupils ...

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