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Davis v. O'Connell

March 31, 2009

MARK DAVIS PLAINTIFF,
v.
B. O'CONNELL, STAR # 420 DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Currently pending before the Court is Defendant, police officer Brian O'Connell's ("O' Connell") motion for summary judgment [26]. For the reasons set forth below, Defendant's motion is granted.

I. Procedural Background

Plaintiff, Mark Davis ("Davis")filed his complaint [1,6] on October 24, 2007, asserting a claim for relief under 42 U.S.C. § 1983. The complaint named both O' Connell and the Winnetka Police Department,*fn1 and the case initially was assigned to Judge Manning. The complaint alleges that O' Connell pulled over the car that Davis was driving despite the absence of probable cause. Davis' s complaint further states that he "violated no traffic laws at the time of the stop" *fn2 and that O'Connell "unconstitutionally stopped [Davis], and detained him in violation of his constitutional rights." Compl. at 5-6. O'Connell's answer [21] states that he had probable cause to arrest plaintiff and submits that Davis is collaterally estopped from pursuing his Section 1983 action due to Davis' s underlying convictions stemming from the stop.

II. Facts

The Court takes the relevant facts primarily from the parties'respective Local Rule ("L.R.") 56.1 statements: Defendant' s Statement of Facts ("Def. SOF") [32], Plaintiff's Response to Defendant' s Statement of Facts ("Pl. Resp. Def. SOF") [59], Plaintiff's Statement of Additional Facts ("Pl. SOAF") [61], and Defendant' s Response to Plaintiff's Statement of Additional Facts ("Pl. Resp. Def. SOAF") [63].*fn3

Brian O' Connell is a Village of Winnetka police officer. At the time of the facts that gave rise to this dispute, O' Connell was serving as a school resource officer at New Trier High School. Def. SOF ¶¶ 2-3. On September 4, 2007, Deanna Sutter ("Sutter"), a staff member of the high school' s music department, reported to O' Connell that two credit cards and forty dollars were missing from her purse. Def. SOF ¶¶ 10, 12, 15-16. Sutter learned that her credit cards had been used, and she passed along to O' Connell both (i) the information related to those purchases and (ii) her account numbers. Def. SOF ¶¶ 19-24.

O' Connell and Detective Karl Larson, also a member of the Winnetka Police Department, began to investigate. Def. SOF ¶¶ 7, 25. They went to two Jewel Food Stores in Evanston where they viewed security footage; O'Connell obtained and watched a VHS security tape from a third location.*fn4 Def. SOF ¶¶ 25-31. O' Connell also viewed surveillance video from New Trier High School. Def. SOF ¶¶ 32-33. All of the video tapes contained "the same individual, an African American male wearing a light-colored short sleeved shirt, light colored long pants, tinted glasses, a watch on his left wrist, and white gym shoes with dark soles." O' Connell Aff. at 19; Larson Aff. at 10.*fn5 One of the videos showed the individual exiting a white, four-door vehicle. Def. SOF ¶ 35.

The video was used to capture images of the individual, which were put into a police bulletin and sent to several local police departments, including the Evanston Police Department. Def. SOF ¶¶ 36-38. Evanston had received reports of incidents similar to the Sutter theft at several of its local schools. Def. SOF ¶ 39. A detective with the Evanston Police Department reported to Detective Larson on September 7, 2007, that he had spoken with several individuals and that the individual depicted in the images was the Plaintiff, Mark Davis. Def. SOF ¶¶ 43, 44.

Events moved fairly rapidly from there. Larson worked with the Evanston detective to obtain a prior arrest photo of Mark Davis and observed that the person in the video surveillance appeared to be Davis. Def. SOF ¶¶ 45-46. A look at prior arrest reports revealed that Davis had been driving a white 2005 Chrysler four-door with Illinois license plate number 979 0923 during an arrest earlier in 2007. Def. SOF ¶ 48. The report also indicated an address for Davis at an apartment building in Skokie, IL. Id. And a different report, this one obtained from the Illinois Secretary of State' s office, showed that Davis had an expired driver' s license. Def. SOF ¶¶ 49- 50.

On September 13, 2007, Davis was arrested. After notifying the Skokie Police Department, O' Connell and Larson drove to the address in Skokie that was listed on one of Davis's arrest report. Def. SOF ¶ 48; [27], Ex. D-1; Pl. SOAF ¶ 6.*fn6 While there, O'Connell and Larson observed Davis enter a white four-door Chrysler Sebring with Illinois license plate number 979 0923. According to Detective Larson, when they observed Davis walk toward the car, "both Officer O' Connell and I recognized him as the spitting image of the subject in the video, and we were sure it was him." Larson Dep. at 34. Officer O' Connell likewise stated in his deposition that the person they observed "looked like the person in the video and the bulletin" *fn7 and "had the same physical description as from the arrest report of Mr. Davis."*fn8

Connell Dep. at 46. Davis drove away, was pulled over by O'Connell and Larson, and arrested after he failed to produce a valid driver's license. Def. SOF ¶¶ 53-54, 57-58. Prior to the traffic stop, Mr. Davis "violated no traffic laws other than driving with an expired license." Pl. SOAF ¶ 12. Davis was charged with driving without a valid driver' s license and with unlawful use of a credit card. Def. SOF ¶¶ 60-63.

In October 2005, a grand jury indicted Davis with two counts of unlawful use of a credit card and two counts of forgery (for signing the credit card receipts, it seems). Def. SOF ¶ 65. As part of a plea deal, Defendant pleaded guilty to one count of unlawful use of a credit card, two counts of forgery, and one count of driving without a valid driver' s license. Def. SOF ¶¶ 67-72; see also [28], Ex. N at 5-7. Davis was sentenced to three years in prison and one year of ...


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