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Gary Kohlman and Allen Roberts v. Village of Midlothian

June 27, 2011

GARY KOHLMAN AND ALLEN ROBERTS, PLAINTIFFS,
v.
VILLAGE OF MIDLOTHIAN, THOMAS MURAWSKI, VINCE SCHAVONE AND
HAL KAUFMAN, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiffs Gary Kohlman and Allen Roberts are members of the Hells Angels Motorcycle Club.*fn1 Kohlman and Roberts filed a § 1983 complaint alleging that the Mayor of Midlothian (defendant Thomas Murawski), Midlothian's Police Chief (defendant Vince Schavone), and a Midlothian police officer (defendant Hal Kaufman) ordered restaurants and bars in Midlothian to refuse to serve them because of their Hells Angels' membership and their wearing of Hells Angels' insignia and logos.

The plaintiffs also allege that at least one private establishment complied with this order, violating their rights under the First and Fourteenth Amendments. The defendants' motion for summary judgment is before the court. For the following reasons, the motion is granted in its entirety.

I. Background

A. Local Rule 56.1

Under Local Rule 56.1, a party moving for summary judgment must submit a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law. L.R. 56.1(a). The statement of facts must contain short and concise numbered paragraphs accompanied by citations to admissible evidence. Id. The opposing party must admit or deny each numbered paragraph and similarly cite to admissible evidence in support. L.R. 56.1(b). Local Rule 56.1 also allows the opposing party to submit a statement of additional material facts that require the denial of the motion for summary judgment. Id.

In general, improper denials by the non-movant mean that the movant's facts are deemed admitted to the extent that they are supported by the record. See Brasic v. Heinemann's Inc., 121 F.3d 231, 284 (7th Cir. 1997). Unfortunately for the court, the parties in this case failed to adhere closely to Local Rule 56.1. Thus, they admitted and denied many of the same facts by relying on admissible evidence in support of their version of the facts, but inadmissible hearsay as a basis for denying the corresponding facts offered by the other side. See Thomas v. Lake County Jail, No. 08 C 3321, 2010 WL 148621 *1 (N.D. Ill. Jan. 12, 2010) (courts may ignore a denial based on inadmissible evidence).

Nevertheless, there are sufficient facts before the court to forge ahead with the defendants' motion. The court will endeavor to lay out the material facts, taking into consideration the contradictory and disputed facts, and the parties' numerous objections to each others' statements of undisputed facts. With that said, the following facts are derived from the parties' Local Rule 56.1 statements of fact and supporting evidence.

B. Facts

1. The Parties

Plaintiffs Gary Kohlman and Allen Robers are members of the Chicago Chapter of the Hells Angels Motorcycle Club. Both plaintiffs currently reside in Midlothian, Illinois. Defendants Vince Schavone and Hal Kaufman are Midlothian police officers. In mid-2008, defendant Thomas Murawski was Midlothian's mayor and Schavone was the Village's Police Chief. Prior to serving as Police Chief, Schavone worked for the Illinois State Police as a member of the Gang Unit.

2. Motorcycle Clubs in Midlothian

The defendants assert that the Hells Angels are one of a number of motorcycle clubs that congregate in Midlothian and neighboring communities. Other clubs include the Axemen and Tunnel Rats. This case turns on the treatment of the plaintiffs while they were wearing Hells Angels "colors" in Midlothian. Although neither party provided an exact definition of "colors," this term apparently refers to a motorcycle club's logos, symbols, or emblems. The Hells Angels do not permit non-members to wear Hells Angels' colors.

Although it is not mandated by a Village ordinance, a number of bars in Midlothian prohibit patrons from displaying motorcycle club colors. These so-called "no-colors" policies are presumably employed to reduce the potential for conflict between members of rival clubs. For example, Durbin's Pub has a "decade's old" policy forbidding service to individuals wearing colors.*fn2 On the other hand, some Midlothian bars and clubs welcome bikers wearing their colors. For example, Jack's Place has no dress code and has never turned away a customer wearing motorcycle club colors.

The defendants -- especially Schavone -- apparently believe that the Hells Angels are a dangerous motorcycle "gang." At a minimum, the defendants contend that their experiences with the Hells Angels over a nearly twenty-year span have left them with a "guarded view" of the Hells Angels and other motorcycle clubs. Defs. Mot. Summ. J. at 1. For example, during the mid-1990s, while Schavone worked for the Illinois State Police, his Gang Unit was called to Midlothian to quell a bomb threat allegedly involving the Hells Angels. Around that same time, members of the Hells Angels were also rumored to be harassing law enforcement officers in Chicago's south suburbs.*fn3 Other alleged incidents of police harassment and intimidation by Hells Angels in and around Midlothian continued through the early 2000s and into the summer of 2008. Schavone's experiences with the Hells Angels prompted him to warn Murawski about the presence of Hells Angels members in Midlothian in early 2008.

3. Midlothian Bars and Restaurants Patronized by Hells Angels' Members

a. O'Leary's Pub

O'Leary's Pub is a Midlothian bar owned by Gerald Plowman and his son, Jonathan ("Jon") Plowman. In the summer of 2008, prompted by Schavone's warnings, Murawski organized a meeting with Jon Plowman, Schavone, and Kaufman. The parties strongly disagree over what transpired at the meeting. According to the defendants, Schavone told Plowman that drug sales were rumored to be occurring at O'Leary's. The plaintiffs, on the other hand, assert that Kaufman began the meeting by asking Plowman whether he knew that Hells Angels' members had been hanging out in O'Leary's. It is clear that the conversation eventually turned to motorcycle clubs as the parties agree that Schavone warned Plowman against allowing motorcycle club members to wear their colors in O'Learys. Schavone explained to Plowman that rival club members could "take this as a challenge." Defs.' Statement of Facts at ¶ 34. The parties further agree that Schavone eventually warned Plowman that if enough problems at O'Leary's were verified, Schavone would petition Mayor Murawski to remove the bar's liquor license.

The plaintiffs contend -- and the defendants deny -- that the defendants' threats toward Plowman far exceeded a simple warning that continued problems at O'Leary's could lead to revocation of the bar's liquor license. In his deposition, Plowman testified that Schavone said, "[t]his is not baseball. You do not get three strikes. This will be your only warning. Get rid of the Hells Angels or I will get rid of you." Pls.' Statement of Addl. Facts at ¶ 7. Plowman testified that Schavone further threatened him by making it "very clear" what would happen if O'Leary's continued to serve Hells Angels' members: Schavone allegedly told Plowman he could harass bar patrons by bringing drug-sniffing dogs into O'Leary's or placing a police car in front of the bar during operating hours and arresting exiting patrons. In his deposition, Schavone denied making any of these threats. It is undisputed, however, that Jon Plowman left the meeting believing that the defendants did not want the Hells Angels in Midlothian.

Shortly after this meeting, Gerald Plowman and Murawski engaged in a heated argument in the Mayor's office over Schavone's perceived threats toward Jon Plowman. Gerald Plowman hoped to reason with Murawski because the Hells Angels represented a significant portion of O'Learys' business, but became upset and left before the two reached any agreement. Eventually, Gerald Plowman agreed to have lunch with Schavone to discuss the matter further. At their lunch meeting, Schavone reiterated his general concern about the dangerous nature of motorcycle clubs, but emphasized that if Plowman was "under the impression that members of the Hells Angels aren't welcome in [O'Leary's] . . . that's a misconception." Defs.' Statement of Facts at ¶ 44. Nevertheless, Gerald Plowman, like his son, came away from his meetings with Murawski and Schavone with the "understanding" that if members of the Hells Angels came into O'Leary's, he was to order them to leave and call the police.*fn4

Despite all of this, the Plowmans never enacted a dress code or a no-colors policy. O'Leary's continued to serve members of the Hells Angels as well as members of other motorcycle clubs, and the plaintiffs were never denied service at O'Leary's. The parties agree that the defendants never followed through on any of their purported threats to Jon Plowman.

b. Papa T's

Papa T's Nightclub is a private establishment in Midlothian owned by Randy Spears. The parties dispute whether Papa T's had a no-colors policy prior to 2008. According to Spears, since Papa T's opening in 2007, it had a no-colors policy that prevented motorcycle club members from wearing patches and emblems. Spears also stated that neither he nor (to the best of his knowledge) any of his employees ever met with Midlothian representatives to discuss the Hells Angels.

Spears' affidavit is directly contradicted by former bar manager Paul Panozzo, who signed an affidavit stating that Papa T's did not have a policy barring colors until mid-2008. According to Panozzo, Papa T's began to deny service in mid-2008 to Hells Angels following a meeting between Spears, Panozzo, Schavone, and another Midlothian official. During this meeting (which Spears says did not occur), Schavone allegedly aired his concerns about the dangerous nature of the Hells Angels and ordered Spears and Panozzo to call the police if members entered Papa T's.

In May or June of 2008, Roberts and Kohlman visited Papa T's at least once while wearing their Hells Angels colors. After each ordered drinks, they were told by Panozzo that they had to leave. The parties disagree as to whether they were told to leave on a second occasion, but agree that Roberts was embarrassed by the experience. According to Panozzo, although Papa T's denied service to members of the Hells Angels, it continued to serve members of other motorcycle clubs.

c. Other Midlothian Establishments

The parties refer to two other Midlothian establishments. Durbin's is a Midlothian bar owned by Jim McAuliffe. The parties have not pointed to evidence showing that McAuliffe or any of his employees were ever approached by the defendants about refusing service to members of motorcycle clubs or gangs. Nevertheless, the parties agree that in June of 2008, Gary Kohlman and two friends were refused service at Durbin's while they were wearing Hells Angels' clothing. The only admissible basis for refusing service in the record indicates that the plaintiffs were denied service based on Durbin's long-standing policy forbidding service to individuals wearing the colors, logos, or emblems of motorcycle clubs.

As mentioned above, Jack's Place, another Midlothian bar, does not have a dress code. The plaintiffs do not contend that they were ever denied service at Jack's Place. According to the bar's owner, Jack Christou, neither he nor any of his employees were ever approached by the defendants about refusing service to members of motorcycle clubs.

II. Discussion

The plaintiffs contend that the defendants violated their rights to equal protection and the First Amendment (Counts I and II, respectively). They also claim that the Village of Midlothian had a municipal policy that violated their rights under the Fourteenth and First Amendments (Count III). Finally, they seek an order ...


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