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Robert Drain v. Harvey Police Officers

August 9, 2011


The opinion of the court was delivered by: United States District Judge Elaine E. Bucklo


Plaintiff Robert Drain ("Drain") sued the City of Harvey, Illinois ("the City") and several of its police officers -- Sergeant Shane Gordan ("Gordan"), and Officers Leonard Barbee ("Barbee"), Ryan Matthews ("Matthews"), Hal Bischoff ("Bischoff"), and Daniel Walz ("Walz") -- asserting multiple claims under 42 U.S.C. § 1983, and a state-law claim for malicious prosecution. Defendants have moved for summary judgment. The motion is granted in part and denied in part.


Drain's suit arises out of two separate encounters with the defendant officers. The first took place in May 2009, when Drain was pulled over in the driveway of his home by Officer Bischoff. Drain alleges that Bischoff, acting on orders from Gordan, ransacked his car and had it towed. The second episode occurred in February 2010, when Drain was arrested by Barbee, Walz, and Matthews for battery in connection with an altercation with his brother-in-law, Clifton Tucker ("Tucker"). Drain claims that the officers had no basis for arresting him because the altercation was nothing more than a shouting match. He insists that he never "battered" or had any physical contact with Tucker. As with the May 2009 incident, Drain claims that the arrest was ordered or encouraged by Gordan.

According to Drain, these incidents were intended to retaliate against him for two previous lawsuits that he brought against Harvey police officers. The first suit, filed in January 2006, asserted claims for false arrest, unlawful seizure, and malicious prosecution. The second suit, filed in June 2007, asserted claims for false arrest, illegal search of his home, violation of his due process rights, conversion, and conspiracy. The suits were ultimately settled in September 2007 and January 2008, respectively. Although Gordan was a defendant in the 2007 suit, none of the other officers in this action was a party to the earlier cases.

In addition to the car-towing incident and the (alleged) false arrest, Drain claims that Gordan has harassed him in numerous other ways in the months after Drain filed suit against him. For example, Drain claims that Gordan has followed him in his patrol car and pulled him over for no reason. He also claims that Gordan has insulted him with vulgar hand-gestures, and that Gordan once remarked to his wife, "Tell your husband I'm still looking for him. I'm going to get him."


Summary judgment is proper where the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The evidence, and all reasonable inferences therefrom, must be considered in the light most favorable to the non-moving party. E.g., Miller v. Illinois Dept. of Transp., 643 F.3d 190, 192 (7th Cir. 2011).

In Count I of his complaint, Drain alleges a § 1983 claim for the unreasonable seizure of his vehicle in May 2009. Defendants initially argue that Drain lacks standing to assert the claim because the vehicle was registered in his wife's name. As a result, defendants claim, Drain had no property or possessory interest in the vehicle, and his fourth amendment rights could not have been violated by the vehicle's seizure. Since fourth amendment rights cannot be asserted on another's behalf, see, e.g., United States v. Figueroa-Espana, 511 F.3d 696, 703 (7th Cir. 2007) ("Fourth Amendment rights are personal rights which ... may not be vicariously asserted.") (quotation marks omitted), defendants contend that Drain lacks standing to assert the claim.

This argument is flawed in at least two ways. As an initial matter, the Supreme Court has made clear that the question presented in claims of this kind is not properly framed as one of "standing." See, e.g., Rakas v. Illinois, 439 U.S. 128, 140 (1978) ("[T]his Court's long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing."). Second, and more to the point, defendants are incorrect in assuming that Drain has no property or possessory interest in the vehicle simply because it is not registered in his name. Defendants offer no argument or authority to support this proposition. Indeed, they ignore clear case law to the contrary. See, e.g., United States v. Posey, 663 F.2d 37, 40-41 (7th Cir. 1981) ("Whether an individual's fourth amendment rights are implicated by a government search or seizure turns upon the individual's legitimate expectations of privacy, rather than principles of common law property law. The fact that Posey owned neither the Ford automobile nor the guns is indeed relevant to the inquiry of whether he had a legitimate expectation of privacy. However, Posey plainly had an expectation of privacy in an automobile owned by his wife and over which he was exercising exclusive control pursuant to her permission at the time of the search."); see also United States v. Battiste, 343 Fed. App'x. 962, 966, (5th Cir. 2009) ("A Fourth Amendment possessory interest is not limited to formal legal title; a property interest in the item searched is only one factor in the analysis, and lack thereof is not dispositive.") (quotation marks omitted).

Defendants argue that they are entitled to summary judgment on Count I at least insofar as it is asserted against Gordan, because there is no evidence that Gordan had anything to do with the seizure. It is undisputed, however, that at the time of the stop, Gordan radioed Bischoff and asked Bischoff to call him back on his phone. It is also undisputed that Bischoff phoned Gordan, and that Bischoff later told Drain that Gordan had directed him to tow Drain's vehicle. To be sure, Bischoff later testified that Gordan had not instructed him to tow the vehicle, and that he (Bischoff) had made the statement only in an attempt to obtain Drain's cooperation. But the plausibility vel non of Bischoff's story is a question for the jury and cannot be the basis for summary judgment. Thus, defendants' motion for summary judgment is denied with respect to Count I.

In Count II, Drain asserts a § 1983 claim against Barbee, Matthews, Walz, and Gordan for his alleged false arrest in February 2010. "To prevail on a claim of false arrest, the plaintiff must show there was no probable cause for his arrest." Jackson v. Parker, 627 F.3d 634, 638 (7th Cir. 2010). "Probable cause exists if an officer reasonably believes, in light of the facts known to [him] at the time, that a suspect had committed or was committing an offense." Id. (quotation marks omitted).

Defendants argue that Count II fails because they had probable cause to arrest Drain for battery. Under Illinois law, "(a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." 720 ILCS 5/12-3. Defendants claim that probable cause was supported by the following evidence: (1) a call was placed to Harvey 911 requesting police because "a big heavy-set black dude" in a light shirt and gray jacket was "beating up a young guy" at 14624 Jefferson Street;(2) Drain is a heavy-set African American male; (3) the arresting officers were informed by the police dispatcher that a "ten-ten" involving two black males was in progress at the address in question; (4) Clifton Tucker and Drain had been engaged in a loud argument at the location in question; (5) after arriving on the scene, Officer Barbee observed that Tucker had blood on his face; and (6) Drain yelled and screamed at his wife and called her a bitch.

Drain points out that, despite defendants' insistence to the contrary, the evidence set forth above is disputed. Drain takes particular issue with defendants' reliance on evidence relating to the 911 transmissions. In a separate motion, Drain moves to strike all references to such evidence, objecting that the defendants failed to file a recording or transcription of the transmissions. He also complains that defendants' account of the recording was not supported by an authenticating affidavit, that the recording is inaudible, and that defendants have ...

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