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Backes v. Village of Peoria Heights

October 28, 2010


The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge


The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the court are two motions for summary judgment, one by Kevin Hale (#30) and one by the Village of Peoria Heights, Dustin Sutton and William H. Switzer (#28). The motions are fully briefed, and I have carefully considered the arguments and evidence of the parties.


In response to Hale's motion, the Plaintiffs stated that they were abandoning their claims against him and conceding summary judgment in his favor. (See, Doc. #36). Accordingly, Hale's Motion for Summary Judgment (#30) is GRANTED.



The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, summary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir.2000); Cox v. Acme Health Serv., 55 F.3d 1304, 1308 (7th Cir. 1995). In ruling on a summary judgment motion, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.

The court is to examine all admissible facts, viewing the entirety of the record and accepting all facts and drawing all reasonable inferences in favor of the non-movant, Erdman v. City of Ft. Atkinson, 84 F.3d 960, 961 (7th Cir. 1996); Vukadinovich v. Bd. of Sch. Trustees, 978 F.2d 403, 408 (7th Cir. 1992), cert. denied, 510 U.S. 844 (1993); Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir. 1990); DeValk Lincoln-Mercury, Inc. V. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987); Bartman v. Allis Chalmers Corp., 799 F.2d 311, 312 (7th Cir. 1986), cert. denied, 479 U.S. 1092 (1987), and construing any doubts against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Trotter v. Anderson, 417 F.2d 1191 (7th Cir. 1969); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir.1999).

The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir.1999). "Inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir.2000).

The parties must identify the evidence (i.e. those portions of the pleadings, depositions, answers to interrogatories, admissions, affidavits, and documents) that will facilitate the court's assessment. Waldridge, 24 F.3d at 922. Thus, as Fed.R.Civ.Proc. 56(e) makes clear, a party opposing summary judgment may not rely on the allegations of her pleadings. Rather:

[T]he adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. See, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). See also, Local Rule CDIL 7.1(D).

Neither the moving party nor the responding party may simply rest on allegations; those allegations must be supported by significant probative evidence tending. First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(when the moving party has met its burden, non-moving party must do more than show some "metaphysical doubt " as to material facts). A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250.

If the undisputed facts indicate that no reasonable jury could find for the party opposing the motion, then summary judgment must be granted. Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995), citing Anderson, 477 U.S. at 248. If the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party and on which that party will bear the burden of proof at trial, then summary judgment is proper. Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.


Dustin Sutton is the Chief of Police for the police department of the Village of Peoria Heights, a position he has held since 1999. William Switzer is and at all pertinent times was employed as a Sergeant with Village's police department.

David Backes, one of the Plaintiffs in this case, is a military veteran who was (and remains) employed as a correctional officer for the Illinois Department of Corrections. As part of his military service and his employment, David had been trained in the use of a significant number of different firearms. In 2006, he owned two shotguns, both of which were kept in a gun case at his home. David has been under treatment for post-traumatic stress disorder and depression since 1996 or 1997. He takes a number of medications, including several anti-depressants and a strong sleep medication which puts him into an extremely deep sleep for 4-5 hours.

David and his wife Sara, also a Plaintiff herein, were having financial and marital difficulties in October of 2006. On October 17, 2006, David, Sara and his mother-in-law discussed some of those problems. David became upset and left at about 4:30 p.m. He drove around Peoria until about 11:30 p.m., talking to Sara via cell phone more than 5 times. At one point, he told Sara he was going to take a bottle of his sleeping pills and kill himself.

David ended up stopped in a parking lot on Galena Road in Peoria Heights, looking toward the nursing facility where his mother resided. By then, he had decided not to commit suicide, although he had not told Sara about his change of heart. The lights were off in his mother's apartment unit, so he drove to the nearby Poplar Street Park in Peoria Heights. He took one of his sleeping pills, planning to sleep for 4 or 5 hours in his car and then visit his mother when he awoke.

Meanwhile, Sara had called the East Peoria police department, reporting that her husband had threatened suicide. An East Peoria police officer was then dispatched to her house and was present during subsequent phone conversations between David and Sarah. Based on information gleaned from Sara's conversation with the officer, a report was released of a potential suicide. The report included a description of David, his clothing, and his car, as well as the facts that he had taken a number of anti-depressant medications and that he had those medications with him*fn1 , and that he had talked to his wife but refused to tell her where he was. This report was released to ISPERN, LEADS and NCIC, all various forms of reporting information of interest to police officers. The latter two reports added that David had "access to weapons" and was "despondent over marital/finance probs."

Based on the cell phone conversations between Sara and David, the police were able to narrow down David's location. At 2:11 a.m. on October 18, Peoria Heights police officer Sergeant William Switzer (who is also a member of the Central Illinois Emergency Response Team or CIERT) located Backes' car, parked with its lights on at the Poplar Street Park. Switzer ran computer records for the license plate and received via the computer in his squad car the following information about David:


Switzer moved his patrol car back away from David's car for safety reasons and notified dispatch that he had located David's vehicle. Shortly thereafter, Kevin Hale (another Peoria Heights police officer) and Paul Segroves (from the City of Peoria)*fn2 arrived on the scene. Switzer moved close enough to David's car that he was able to see that there was someone in the car. Officer Hale then positioned his police vehicle at an angle, about 3-4 car lengths away from the driver's side of David's car, shining his high beam headlight and his spotlight at David's car. They could see the occupant in the car, and they noticed that the front, driver's-side window was down.

At about 2:30 a.m., Switzer used the public address system in the police car to identify himself and to request that David raise his hand to indicate he heard Switzer. This announcement was made several times, with no response. On several occasions, Switzer could see some slight movements - Switzer described them as a movement of the head or adjustment in the seat - but there was nothing that Switzer interpreted as a response to his direction. Switzer's report shows that he saw this type of movement at 3:24, 3:47, 3:58, 4:02, and 4:17.

At 2:49 a.m., Switzer sought confirmation whether David had weapons. Through dispatch, East Peoria's police department was asked to talk to Sara about any possible weapons David might have. An officer arrived at 2:52. Sara took him to the gun safe, and both of his weapons were there. The officer reported to the East Peoria dispatcher that "unless he got something from somebody else, there should not be any firearms or weapons in his vehicle." This information was conveyed by telephone to the Peoria Police Department. It appears that Switzer, however, never received this information.

The situation as Switzer evaluated it was that David could be a danger to the officers on the scene. He based this conclusion on three factors: (1) not knowing whether David was armed; (2) the report that David was suicidal, which Switzer believed might mean that he was willing to harm not only himself but others; and (3) although David's movements showed that he was not unconscious, he failed or refused to respond or cooperate with officers at the scene.

Switzer contacted dispatch, relayed his view of the situation, and requested that Chief Sutton be alerted. He also requested that an ambulance respond and stand by in case David needed medical attention. Switzer then resumed his efforts to make contact with the occupant of the car. He obtained David's cell phone number and tried to call him, but the call went directly to voice mail. Switzer was not close enough to hear the phone ring, which would have told him whether David still had the phone with him.

Based on the information provided by Switzer, Chief Sutton believed that Backes could be a threat to himself, the officers and any residents in the area. He decided to notify the Central Illinois Emergency Response Team (CIERT) and request a CIERT supervisor at the scene. CIERT is a team consisting of members of various law enforcement ...

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