The opinion of the court was delivered by: Judge John A. Nordberg
MEMORANDUM OPINION AND ORDER
This is an excessive force case. Plaintiff Byron Smith alleges that one of the three defendant police officers intentionally drove a police car over plaintiff's left ankle after he had surrendered by getting out of the SUV he had been driving and putting his hands on the hood. He further alleges that one of the officers then handcuffed him face down and hit him on the back of the head with a blunt object, perhaps a gun. The defendants are moving for summary judgment on all four counts in the complaint. Defendants' primary argument is factual. They argue that plaintiff cannot show that any of the officers drove the car or hit him on the head.
Both sides agree on many facts, particularly those leading up to and after the alleged injuries, but they disagree about the events after plaintiff got out of his car until he was handcuffed and then (allegedly) hit on the head. The critical piece of evidence is plaintiff's deposition testimony. In a twist from the typical case, defendants rely heavily on this testimony, believing that it exonerates them, while plaintiff backs away from his own testimony and shifts his theory somewhat in his response brief. Accordingly, we begin with a description of events as taken from plaintiff's deposition.
In the evening of May 9, 2006, plaintiff was watching tv with a friend and drinking cognac. He drank several glasses and felt intoxicated. Around 2 a.m., he went outside to hang out with several men there. Several hours later, around 4:30 a.m., one of the men asked plaintiff to drive him and another man around in the man's SUV. During this joyride, the men asked plaintiff to pull over into Lexington Circle in Ford Heights. There, the two passengers got out and began shooting rifles which had been in their pant legs, with one firing an AK-47, the other a weapon known as an SKS.
With the two men back in the car, plaintiff continued driving and then saw flashing police lights in his rearview mirror. He sped away. He did so, he explained in his deposition, because he didn't want to go to jail (he was on probation for a unlawful use of a firearm and had a night curfew) and because he was afraid of the two men with guns who were screaming at him to "go." After four or five minutes in a car chase, plaintiff pulled the SUV off the road into an area where there were bushes leading up to a hill (referred to as a berm) on which an old railroad track used to run.
As plaintiff pulled the car to a stop a few feet from the hill, the two passengers jumped out of the car and ran up the hill trying to get away from police. Plaintiff says he decided to surrender. He got out and put his hands on the left side of the front of the hood of the SUV. The police car that had been chasing plaintiff pulled up behind plaintiff's SUV. The officer in the passenger seat of the police car, defendant Roger Wilson, got out and chased after the two men running up the hill.
At this point, we reach the critical part of plaintiff's deposition testimony (pp. 49-50). Plaintiff testified that the driver of the police car, which everyone now agrees would have to be Officer Stokes, got out of the police cruiser and said "don't move." Before Stokes got up to where plaintiff was standing, another vehicle was already coming towards plaintiff. This second police car, according to plaintiff, was a "marked squad car." Asked whether the second car could have been a police SUV, plaintiff said it was a regular police car.
As the police squad car came towards plaintiff, he tried to get out of the way by scooting around to the front of the SUV, but his left leg was clipped near the ankle and then his body was pinned against the side of the hill. Stokes told the driver of the car to pull it back to free plaintiff's body. When he did so, plaintiff fell to the ground face down.
As plaintiff lay on the ground, someone -- plaintiff now claims it was Officer Stokes --put handcuffs on him and said "I ought to fucking kill you" and hit him on the back of the head with a hard object. Plantiff speculates it could have been a gun. Plaintiff couldn't see the officer's face because plaintiff was lying face down. When plaintiff tried to turn around to see who the person was, the officer sprayed mace in plaintiff's face. Eventually other police officers arrived and a dog was brought over to sniff plaintiff. Plaintiff laid there four or five minutes until he was placed in an ambulance and taken to the hospital.
To summarize, according to this testimony, Officer Stokes was standing near plaintiff when another officer drove the police car over plaintiff's leg, meaning Stokes was not the driver.
However, in his response brief, plaintiff backtracks from this version of events and alleges that Officer Stokes was in fact the driver of the car, as well as the person who later hit plaintiff on the head. Plaintiff also in his response brief states that the other two officer defendants were not around because they ran off chasing the two passengers from plaintiff's SUV. In other words, plaintiff has now focused his entire case on Officer Stokes.*fn1
When the paramedics arrived, they noticed that plaintiff had a cut on the back of his head. One of the paramedics testified that plaintiff complained that he had ...