The opinion of the court was delivered by: Reagan, District Judge:
Before the Court is the Motion for Summary Judgment (Doc. 41), filed by Defendants Village of Pontoon Beach ("the Village"), Chief Charles Luehmann, Officer Chris Modrusic and Officer Aaron Morgan. Defendants move for summary judgment against Plaintiff Christopher Hantak ("Hantak") on all seven counts of his complaint (Doc.4). This action arises from events that transpired in the late evening and early morning hours of November 8--9, 2008, outside Mac & Mick's Sports Bar in Pontoon Beach, Illinois. That night, an altercation in the parking lot between an off-duty, probationary, St. Louis Metropolitan Police Department ("SLMPD") officer and other bar patrons led to the shooting of non-party, Jeff Bladdick. Then, in the ensuing chaos, Hantak-also an off-duty, probationary SLMPD officer-was shot twice by Defendant, Village of Pontoon Beach police officer, Aaron Morgan. On November 5, 2009, Hantak filed a seven-count complaint raising the following claims:
Count One Pursuant to 42 U.S.C. §§ 1983, 1988, excessive use of force in violation of the Fourth and Fourteenth Amendments to the United States Constitution against Officer Morgan;
Count Two § 1983 failure to intervene against Officer Modrusic; Count Three § 1983 civil conspiracy against Chief Luehmann and Officers Morgan and Modrusic;
Count Four § 1983 failure to train under Monell v. Dep't of Social Services, 436 U.S. 658, 690 (1978), against Chief Luehmann and the Village of Pontoon Beach;
Count Five State law assault and battery against Officer Morgan Count Six State law civil conspiracy against Officers Morgan and Modrusic and Chief Luehmann Count Seven Respondeat superior, under state law, against the Village of Pontoon Beach Defendants claim they are entitled to summary judgment on all claims because "there is no evidence of a constitutional violation, the individual defendants are entitled to qualified immunity, and there is no evidence to support the state law claims" (Doc. 41, ¶ 5). Hantak has responded that, given the large number of widely varying eye-witness accounts, genuine issues of material fact exist, precluding summary judgment (Doc. 48). Defendants' motion has been fully briefed, the Court has thoroughly reviewed the extensive record and now rules as follows.
On summary judgment, the Court considers the facts in a light most favorable to the non-moving party (here, Hantak), and adopts reasonable inferences and resolves doubts in favor of that party. Nat'l Athletic Sportswear, Inc., v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). On November 8, 2008, Hantak, at least three other probationary, off-duty SLMPD officers, and some other friends went to Mac & Mick's Sports Bar to continue celebrating a birthday and engagement party. There was a large crowd at the bar that evening (Doc. 42, Ex. 1, p. 44); and Hantak was carrying his department-issued service weapon with him (Id., Ex. 3, pp. 47-48). Hantak consumed roughly five beers and two mixed drinks throughout the course of the evening, starting around eight or nine p.m.; but according to at least one witness-a bartender-he did not appear intoxicated (Id. at 43, 51; Doc. 48, Ex. 2, pp. 11-13).
Sometime around 1:00 a.m., while Hantak was still in the bar, an altercation arose in the parking lot of Mac & Mick's during which one of Hantak's companions-off-duty, probationary SLMPD Officer Bryan Pour ("Pour")-shot another bar patron (Doc. 48, Ex. 1, pp. 54-55; Doc. 42, Ex. 6, pp 18-19). When Hantak heard that a shot had been fired he quickly exited the bar, drew his service weapon, placed his badge-which was hanging on a lanyard-outside of his shirt, and immediately went to assist Pour (Doc. 48, Ex. 1, pp. 95-96, 117, 122). After speaking with Pour and another companion, all Hantak knew was that Pour had been in a fight and was beat-up, and that some unknown person had been shot; Hantak then started looking for that individual (Id. at 114).
There were people all over the parking lot running to their cars, trying to leave, and the scene was chaotic (Id. at 97, 108). Hantak attempted to secure the scene, telling people to stay where they were until the police arrived (Id. at 108, 111). Hantak was displaying his weapon, but he claims that he had both hands on it at all times, that he kept it pointed downward to the ground, and that he never waived it, or pointed it at anyone (Id. at 117-122). At some point, while Hantak was canvassing the parking lot, Village of Pontoon Beach Police Officer Aaron Morgan ("Morgan") arrived on the scene, and Officer Chris Modrusic ("Modrusic") arrived shortly after him (Doc. 42, Ex. 22, p. 52). The next thing Hantak remembers is being shot (Doc. 48, Ex. 1, p. 154). Hantak claims he never saw the uniformed officer who shot him, never saw anyone holding a gun, and never heard any command to drop his weapon (Id. at pp. 154-155).
According to Officers Morgan and Modrusic, they were dispatched to Mac & Mick's due to a fight in progress with shots fired (Doc. 42, Ex. 22, p. 42-44). The Officers drove to the bar with their overhead lights and sirens activated, and on the way a dispatcher reported additional shots fired, man down (Id. at pp. 42, 57). Upon arriving, Officer Morgan parked near the front driveway, got out of his car, drew his weapon, and was met by a Mac & Mick's employee who said, "he's shooting him, he's shooting him right now" (Id. at pp. 54, 56-57, 59). Officer Morgan then ran to the parking lot, which was full of cars, and saw people screaming, one person running and one person lying on the ground; he asked some bystanders where the shooter was and they pointed in the direction of a dark colored truck and several other cars (Id. at pp. 61-64, 85). Morgan proceeded about 20 feet in that direction and saw two men, one holding the other up against the truck with hands behind his back as if he was being handcuffed (Id. at 66-68). At this point, for the first time, Morgan saw Hantak on the far side of the truck, about six feet from him; Hantak was holding a weapon to his chest (Id. at 69-72). Morgan claims he yelled, three times, in quick succession, "police, drop your gun"; and that Hantak, who was facing him, responded by moving his gun toward Morgan (Id. at 74, 76-77). Morgan then rapidly discharged his semi-automatic weapon three times, with two of the shots striking Hantak (Id. at 85-86). Hantak claims that one of the shots struck him in the right, upper neck and the bullet exited his face, but the Defendants' claim that Hantak was shot in the face. Morgan prepared his police report of the shooting a couple of weeks after the incident; all officers involved were assisted in preparing their reports by a Police Benevolent and Protective Association attorney in Springfield, Illinois (Doc. 48, Ex. 9, pp. 16, 21).
Police Chief Charles Luehmann ("Luehmann") arrived at Mac & Mick's about one hour after the shooting (Doc. 42, Ex. 24, p. 14). Detective Schardan, a Sergeant with the Village's police department, told Luehmann that he had called the Illinois State Police and that they would be taking over the investigation (Id. at 17-18). Apparently, none of the officers involved, nor Chief Luehmann, were ever questioned or contacted by the Illinois State Police (Doc. 48, Ex. 9, pp. 107-108; Ex. 25, pp.70, 79; Ex. 27, pp. 22, 49-51). Chief Luehmann was unaware of any department training on an officer's use ...