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Jeffrey Connor Kasey v. Officer G.J. Mcculloh

May 5, 2011


The opinion of the court was delivered by: Hon. Joan H. Lefkow



Jeffrey Kasey filed an amended complaint against Officer G.J. McCulloh and the Village of Northfield under 42 U.S.C. § 1983 for false arrest and excessive force in violation of the Fourth and Fourteenth Amendments to the United States Constitution. He also brings a state law malicious prosecution claim against McCulloh and seeks indemnification from the Village of Northfield. Before the court is defendants' motion for summary judgment. For the following reasons, the motion [#48] is granted in part and denied in part.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56(c) & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In response, the nonmoving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at 598--99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).


On February 2, 2008, Kasey, at the time a seventeen year old high school student, attended a birthday party at a friend's house in Northfield, Illinois. Attendees were drinking alcohol, and Kasey admits to having had approximately three beers. Around midnight, Courtney Anderson, a friend of Kasey's, left the party to tell a cab waiting in the driveway that another guest would be out shortly. McCulloh, a Northfield police officer, was patrolling in the area at the time when he saw the cab and a female, presumably Anderson, walking out to it. Suspecting a party, as there were more cars parked on the street than usual, McCulloh parked near the house. Shortly thereafter, Kasey came outside the house to call his father. He saw Anderson speaking to someone inside a car parked about fifty feet from the house. He headed toward the car, believing it to be the aforementioned cab. When he was about eight to ten feet away from the car, he realized it was instead a Northfield Police car and turned back toward the house.

The parties dispute what happened next. McCulloh claims he observed an intoxicated minor, Kasey, approaching. He states that Kasey's face appeared droopy and flaccid, that his eyes were glassy and bloodshot, and that he sauntered up to the vehicle. McCulloh then exited his car, asked Kasey to approach, and, after Kasey said he was going back inside the house to wait for his dad, ordered Kasey to stop. When Kasey did not stop, McCulloh grabbed Kasey's elbow. Kasey pulled away, leading McCulloh to grab Kasey in a bear hug and tell him he was under arrest for underage drinking. While held by McCulloh, Kasey was yelling and moving around. After about a minute, Kasey agreed to cooperate with McCulloh, at which point McCulloh loosened his grip so as to reach his handcuffs. Kasey broke free and began running. McCulloh, who had called for backup, ran after Kasey. After Kasey had run through several yards and jumped at least one fence, McCulloh took out his taser and flashed its light beam in Kasey's line of vision. McCulloh warned Kasey that if he continued to resist, he would be tasered. Kasey was also told to walk back toward McCulloh, who was standing on the other side of a fence, and drop to his knees when he neared the fence. At that point, another officer, Officer Brown, attempted to handcuff Kasey, who stood back up and continued to resist. McCulloh then yelled "taser" and deployed the taser. After hearing a noise indicating the taser was ineffective and observing Kasey's continued resistance to arrest, McCulloh deployed the taser a second time, which led Kasey to fall to his knees. Because Kasey would not move his arms from under his body to allow Brown to handcuff him, McCulloh deployed the taser a third time, after which Kasey was handcuffed.

Kasey, on the other hand, maintains that he did not appear at all intoxicated. He claims not to have done anything to arouse suspicion, such as walk out of the house stumbling, with a beer in hand, or smoking. Kasey states that McCulloh grabbed him, threw him against the car, lifted him off the ground, and told him he was under arrest without specifying the charges despite many questions to that end. Kasey was able to break away from McCulloh and began running. He continued to run until McCulloh fired the taser at him without warning, at which point he was immobilized. The taser was then used two more times, the third time while Kasey was facedown.

After being tasered and handcuffed, Kasey was taken to a hospital where the taser barbs were removed. He was charged with consuming alcohol as a minor, possession of marijuana, and resisting arrest. He admitted to these charges after his arrest. A breathalyzer test returned a blood alcohol level of 0.0062. Nonetheless, as Kasey was a juvenile arrested for a first-time offense, his case was diverted directly to informal supervision without any charges being brought against him in court. No finding of guilt or innocence was made, and Kasey did not contest his supervision. He subsequently had all charges and records related to his arrest expunged.


I. False Arrest Claim

To prevail on his false arrest claim under 42 U.S.C. § 1983, Kasey must establish the absence of probable cause for his arrest. See Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998). Probable cause existed if "at the moment the arrest was made . . . the facts and circumstances within [McCulloh's] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [Kasey] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); see also Thompson v. Wagner, 319 F.3d 931, 934 (7th Cir. 2003). Probable cause is evaluated "not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the position of the arresting officer -- seeing what he saw, hearing what he heard." Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992). "[P]robable cause demands even less than probability; it requires more than bare suspicion but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false." Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000) (citations omitted) (internal quotation marks omitted); see also Maryland v. Pringle, 540 U.S. 366, 370--71, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003) ("The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.").

Determining whether probable cause exists is necessarily a fact-intensive inquiry. Jones by Jones v. Webb, 45 F.3d 178, 180 (7th Cir. 1995). Consequently, summary judgment is inappropriate where material facts regarding the existence of probable cause are in dispute. See id. ("Whether an officer had probable cause to make an arrest generally will present a question for the jury, although the court can decide it when the material facts are not disputed."); Schertz v. Waupaca County, 875 F.3d 578, 582 (7th Cir. 1989) ("While Section 1983 claims presenting the question of ...

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