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Rosalyn Graham v. Christopher Blair

December 28, 2011


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This matter comes before the Court on the motion for summary judgment filed by defendants Christopher Blair, Brian Zywicki, Mike Origliosso and Dave Matevey (Doc. 16). Plaintiffs Rosalyn Graham and Kathy Williams have responded to the motion (Doc. 19).

I. Standard for Summary Judgment

Summary judgment is appropriate 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008). Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).

In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.

II. Facts

Viewing all the evidence and drawing all reasonable inferences in the plaintiffs' favor, the Court finds the admissible evidence establishes the following relevant facts.

In August 2009, while Graham was living in East St. Louis, Illinois, Graham called 911 to report an incident of harassment at her home, but no police officer ever responded to her call. She later reported the identity of the harasser to someone at the East St. Louis Police Department, but the police did not do anything to prevent the harasser from coming to her house again the next day. Graham began to believe the police department was not going to help her, so she decided to purchase a gun for her own self-defense.

A. August 13, 2009

On August 13, 2009, Graham went to Ron and Jo's Gun Shop in O'Fallon, Illinois, to purchase a gun. She brought along with her Richard "Cotton" Allen, her husband from whom she was separated, her brother Anthony Neal, and Neal's girlfriend Kim Scott. Allen was a convicted felon and was not permitted to own or carry a handgun. While Graham was looking at handguns in Ron and Jo's, Allen, Neal and Scott went into another room to look at the "big guns." Graham decided to purchase a handgun that the salesman had shown her, presented her firearm owner's identification ("FOID") card, filled out the required paperwork and then left the store to wait the mandatory waiting period before she could pick up the gun.

Defendant Dave Matevey, an O'Fallon, Illinois, police officer, saw Graham leaving the parking lot. About a half mile from Ron and Jo's, Matevey pulled Graham over for having a low-hanging muffler, but Graham's car had no muffler. When he approached her, she told Matevey she had a FOID card and had purchased a gun legally. She continued to explain why she and Allen had been at Ron and Jo's, which raised Matevey's suspicions because he had not questioned her gun purchase. Matevey ended up writing Graham a ticket for not having an insurance card with her while she was driving. Matevey recognized Allen, who Matevey knew was a convicted felon, in the front passenger seat of Graham's car.

Later, another O'Fallon police officer told Matevey that the Ron and Jo's salesman from whom Graham had purchased the gun had told him that Allen had been very interested in which gun Graham was considering and appeared to be directing her purchase. Based on Graham's behavior when he had pulled her over and on this report from the other O'Fallon police officer, Matevey came to believe Graham was purchasing a gun for Allen and informed the entire O'Fallon Police Department of his suspicion. The United States Department of Justice Bureau of Alcohol, Tobacco and Firearms ("ATF") learned of Matevey's suspicions, and ATF Special Agent Stephen Kirkpatrick began an investigation. Matevey believed Kirkpatrick had been informed of what Matevey had learned about Graham's gun purchase.

B. August 18, 2009

ATF asked the O'Fallon Police Department to assist in a sting operation involving Graham's gun purchase by stopping Graham's vehicle after she picked up the gun from Ron and Jo's. Law enforcement viewed the traffic stop as high risk. O'Fallon Police Department Sergeant James Cavins contacted defendant Origliosso, then a sergeant with the Fairview Heights Police Department, to ask the Fairview Heights Police Department to assist in the traffic stop if Graham drove towards Fairview Heights. Origliosso indicated the Fairview Heights Police Department would help. Kirkpatrick was in charge of the sting operation.

In the afternoon of August 18, 2009, Graham went to Ron and Jo's to pick up the gun she had purchased a few days earlier. She took with her Allen, plaintiff Williams and Williams' three-year-old son. Graham intended to drop Allen off at his mother's house before going to Ron and Jo's, but because it was easier logistically to pick up the gun and then drop Allen off, she changed her mind and went to Ron and Jo's while Allen was still in her car. Graham picked up the gun, made sure the safety was on, placed the gun in the trunk of her car and drove away.

ATF agents notified Matevey that Graham had picked up the gun and that Allen was with her in the car. The agents described Graham's vehicle, indicated it was heading west towards Fairview Heights, and asked Matevey to stop the car. Matevey and Cavins, who was in the car with Matevey, turned on their lights and siren and attempted to stop Graham's vehicle. Graham passed into Fairview Heights, where defendants Blair and ...

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