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John Tebbens v. Officer Dennis Mushol

June 1, 2011

JOHN TEBBENS, PLAINTIFF,
v.
OFFICER DENNIS MUSHOL, DEFENDANT.



The opinion of the court was delivered by: District Judge Blanche M. Manning

MEMORANDUM AND ORDER

A former firefighter's attempts to collect money for charity have led to the instant lawsuit claiming false arrest under 42 U.S.C. § 1983 and seeking indemnification by the City of Chicago under state law. The defendants have moved for summary judgment, which the court grants.

Facts

Tebbens is a former Chicago firefighter who, while employed as a firefighter, created a not-for-profit charitable organization called Helping Children of Abuse. Tebbens resigned as a firefighter in 2004 (the reasons for this are disputed but immaterial) but continued to work on the charity. In 2005, Tebbens began soliciting donations for the charity on a street corner in Chicago. Tebbens would approach individuals with a yellow and black rubber boot and ask them for money. The boot was approximately 20 to 21 inches tall and had an 8 1/2 by 11 piece of paper taped on it that said "Helping Children of Abuse." When he was a firefighter, Tebbens had solicited money for other charities using a fireman's black boot. Tebbens found collecting money in a boot was beneficial because paper money did not blow away and it was easier to give back change. Accordingly, Tebbens decided to use this method when soliciting donations for his charity.

October 2005 encounter. Tebbens began a tempestuous history with defendant Officer Mushol in October 2005 when Mushol and his partner received a radio call that someone was soliciting money at the intersection of Lincoln, Belmont and Ashland using a fireman's boot.*fn1

Mushol was aware that firefighters had a long-standing practice of collecting money in their boots and believed that the plaintiff's boot looked like a fireman's boot, which Tebbens disputes. Accordingly, when he arrived at the scene, Mushol asked Tebbens for identification. Mushol states that when Tebbens opened his wallet, Mushol saw what appeared to be a firefighter identification card with a picture of Tebbens on it. Tebbens testified that he gave Mushol his Illinois driver's license, but Mushol took Tebbens' wallet and found what he mistakenly thought was a fireman's ID. Mushol asked Tebbens if he was a Chicago firefighter. Mushol testified that Tebbens responded that he was a former firefighter injured in the line of duty while Tebbens states that he said only that he had resigned as a firefighter. Mushol called in on the radio to verify that Tebbens was a former firefighter but was not able to obtain an answer at that time. Accordingly, Mushol filled out a contact card regarding his encounter with Tebbens by recording Tebbens' drivers' license number and the information from the Chicago Fire Department identification card. Mushol told Tebbens that he was going to check on him.

Later that week, Mushol called the Office of Emergency Management Communications to find out whether Tebbens was an injured or retired firefighter. Mushol states that he was told by the individual at the OEMC that Tebbens was no longer at the fire department and was not on disability. The OEMC representative also told Mushol that Tebbens may have been fired and referred Mushol to the Internal Affairs Department. Mushol spoke with an investigator at IAD who told him that Tebbens was not allowed to possess an active firefighter ID. The IAD officer further told Mushol that she would like to get the ID back and would assist in any prosecution of Tebbens related to the ID.

The plaintiff objects on the ground that the above statements by OEMC are hearsay. However, they are not being provided for the truth of the matter asserted; rather, they are being used to show what Mushol understood the situation to be and their effect on his actions. Thus, they are not hearsay.

April 1, 2006 encounter. On April 1, 2006, Tebbens was again soliciting money at the intersection of Lincoln, Belmont and Ashland in Chicago. Tebbens had been collecting money for his charity for a couple of hours when Mushol and his partner appeared at the intersection in a police van. Tebbens had a permit to solicit displayed (Mushol says with tape) on his vest. According to Tebbens, Mushol and his partner "came out [of the van] after asking me to come to them, rushed over, grabbed each one of my arms and elbows, and pushed me into the back of the paddy wagon." Tebbens Dep. at 88. In addition, Tebbens contends that Mushol accused him of being un-American and collecting money for terrorists. Alternatively, Mushol states that he approached Tebbens and asked for ID.

When Tebbens pulled out his firefighter ID again, Mushol arrested him for not having a valid city permit to solicit, failing to display a city permit and theft related to the firefighter ID. According to Tebbens, the first two counts were dismissed because he had a valid city permit to solicit money. Tebbens states that while Mushol did not have a good faith basis for charging him with theft of a fireman's ID, he ultimately agreed to a plea of supervision. Tebbens asserts that, at the hearing on the theft charge, when the Assistant State's Attorney indicated that the state would drop the charges if the fire department confirmed that it was not a fire department ID, Mushol became irate. In order to mollify Mushol, Tebbens' public defender and the prosecutors agreed to a plea of supervision on the condition that:

John Tebbens not hold himself out as a member of the Chicago Fire Department and not collect money/donations on the street with a fireman's (or one similar) boot in the name of the Chicago Fire Department.

June 9, 2006, Order of Special Conditions of Bond or Release, attached as Exh. F to Defendants' Rule 56.1 Statement of Undisputed Facts.

Subsequent encounters with the police. After the April 1, 2006, arrest, on at least one occasion (Tebbens contends it was more than once), Mushol saw Tebbens soliciting money at the same intersection at Lincoln, Ashland and Belmont. According to Tebbens, Mushol made an announcement over the PA system in the patrol car not to give money to Tebbens because the charity was a fraud and a scam.

May 30, 2007, arrest. Tebbens was soliciting funds using the boot on May 30, 2007, at the same intersection when Mushol pulled up in his squad car. Mushol approached Tebbens because he believed Tebbens had been collecting money in violation of his order of supervision. Tebbens notes that Mushol testified at his deposition that he believed that he could arrest Tebbens for violation of the terms of Tebbens' supervision; however, when asked what statute allowed him to do that, Mushol stated that he was not certain. Mushol Dep. at pp. 52-53. Mushol instructed Tebbens to come over. Because Tebbens was collecting a donation from someone, he did not ...


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