The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Monday, 02 May, 2011 04:30:27 PM
Clerk, U.S. District Court, ILCD
This case is before the court for ruling on the Motion for Summary Judgment (#10) filed by Defendants Joseph S. Eisenhauer, Larry Thomason, Doug Miller and Bob Richard. This court has carefully reviewed the arguments of the parties and the documents filed by the parties. Following this careful and thorough review, Defendants' Motion for Summary Judgment (#17) is GRANTED.
Plaintiff is Caucasian and was hired by the City of Danville Police Department (Department) as a police officer in 1995. On March 8, 2008, at approximately 2:00 a.m., Plaintiff was involved in a confrontation at a Steak and Shake restaurant in Danville. Plaintiff was off duty that day, was dressed in plainclothes, and had no badge with him. Earlier in the evening, Plaintiff had been at Monical's and then went to Snapper's Turtle Run Restaurant, arriving there about 8:00 p.m. Plaintiff was at Snapper's about four hours and drank four or five 12 ounce Bud Light beers.
Plaintiff then went to a bar, Sarge's Tap, where he met his wife and friends. Plaintiff drank half of a 12 ounce Bud Light.
Around 2:00 a.m., Plaintiff drove to the Steak and Shake with his wife. His friends Sean and Kayla O'Kane drove there also. Plaintiff was at Steak and Shake about 30 minutes when four African American individuals, two men and two women, came in and sat down. Plaintiff recognized the two men as persons he had dealt with previously as a Danville police officer, including an incident about six months earlier when he used a taser on both of them during a fight outside a Danville bar. Plaintiff testified that he felt the two men knew who he was. Neither Plaintiff nor anyone he was with had any interaction with the four African American individuals. Plaintiff's party got up to leave, and Plaintiff paid their check. They went outside and, when Plaintiff looked back in the restaurant window, he saw one of the African American men blowing kisses towards his wife and shaking his fist at Plaintiff.*fn2 Plaintiff later learned that the man who was gesturing was Willie Thomas and the man he was with was Benny Rhodes.
Plaintiff went back into the Steak and Shake, approached Thomas and told him to "knock it off." Thomas denied he was doing anything and he and Plaintiff argued. Rhodes then spoke up and Plaintiff told him to "stay out of this." Plaintiff testified that the situation was getting "a little heated" and loud. Plaintiff asked his friend Sean O'Kane to call 911. Plaintiff testified that Rhodes told him, "man, I don't care who you are. We will take you out." Plaintiff testified that he perceived Rhodes' comments as a threat. Plaintiff then pulled his off duty weapon and pointed it at Rhodes. Plaintiff's off duty weapon is a Smith and Wesson .38 revolver and it was loaded. It is a "double action" gun which means you pull the trigger and it fires. It has no safety. Plaintiff's revolver was concealed on him until he pulled it out and pointed it at Rhodes. Plaintiff testified that the muzzle of his gun was pointed at Rhodes' head from about 18 inches away. Plaintiff's gun was pointed at Rhodes' head for about 15 seconds. Plaintiff then put it back in the holster. Plaintiff testified that Rhodes got up, pushed him in the chest area and headed "towards the restroom."
Plaintiff testified that he did not see Rhodes or Thomas with a weapon of any kind and has received no information that either of them had a weapon. Danville police officers arrived at the Steak and Shake and Rhodes was handcuffed. While Plaintiff was being interviewed by Danville police Sergeant Rhonda Swisher, he said to her to just let Rhodes and Thomas go. Rhodes and Thomas were not charged with any crime.
A Steak and Shake surveillance camera produced a video which shows what happened in the confrontation. On March 8, 2008, the same day as the incident occurred, Defendant Larry Thomason, Public Safety Director for the City of Danville, put Plaintiff on paid administrative leave while a criminal investigation regarding Plaintiff's actions was conducted by the Vermilion County Sheriff's Office. A few weeks later, when the Sheriff's investigation was concluded, Thomason told Plaintiff he was not going to be charged criminally. Plaintiff was reinstated and came back to work. Plaintiff testified that Thomason told him "[w]e are not doing anything." Thomason testified, however, that he waited until the Sheriff's investigation was concluded before starting an internal investigation. On March 26, 2008, Thomason requested an internal affairs investigation regarding Plaintiff's conduct in the incident to determine whether any department rules and procedures were violated. Plaintiff testified that, a few days after he returned to work, he responded to a call at the YMCA. While he was there, a woman named Emily Stonewall told him he was a racist and should be fired.
Defendants Doug Miller and Bob Richard, who were both Deputy Directors in the Danville police department, were involved in the internal affairs investigation. Miller testified that he had a very limited role. As a result of the internal affairs investigation, Plaintiff's employment was terminated based on the incident at the Steak and Shake. On April 2, 2008, Plaintiff received a memorandum from Thomason advising him that he was being placed on paid administrative leave "effective with the receipt of this memorandum." On May 1, 2008, Defendant Joseph S. Eisenhauer, the Mayor of Danville, filed charges against Plaintiff seeking the termination of his employment. Thomason testified that he recommended termination, but the decision to terminate Plaintiff's employment was made by Mayor Eisenhauer. Eisenhauer testified that he believed that the incident at the Steak and Shake warranted termination.
Plaintiff filed a grievance and an arbitration hearing was held. Following the hearing, the arbitrator found that, prior to this incident, Plaintiff had "generated a record of very good service." However, the arbitrator also found that Plaintiff "had no justification for drawing his weapon and pointing it at Rhodes" and found that the City had just cause to terminate Plaintiff's employment. The arbitrator stated, "[n]o police department can afford to employ a sworn officer who behaves in this manner. Police officers are employed to protect the public, not threaten to kill them over petty slights." Plaintiff was then terminated, effective March 19, ...