The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge
Tuesday, 27 March, 2012 03:32:36 PM
Clerk, U.S. District Court, ILCD
In December 2010, Plaintiff Timothy L. Browning, acting pro se, filed a Complaint (#1) against multiple officers of the Champaign Police Department. Plaintiff alleges that, in the course of arresting him, the officers released a dog on him, and he was bitten several times. Plaintiff also alleges that the officers made racist comments to him throughout the incident, indicating that his arrest was racially motivated. The Court construes these allegations as claims for violation of equal protection under the Fourteenth Amendment, unconstitutional arrest under § 1983, and excessive force under § 1983. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge.
In June 2011, Defendants filed a Motion for Summary Judgment (#30). In August 2011, Plaintiff also filed a Motion for Summary Judgment (#35). Defendants filed Defendants' Response to Motion for Summary Judgment (#36). After reviewing the parties' pleadings, memoranda, and evidence, this Court GRANTS Defendants' Motion for Summary Judgment (#30).
Plaintiff was arrested in November 2009 for possession of heroin, and was later convicted. Plaintiff's claims against various officers of the Champaign Police Department involve events that allegedly took place throughout the course of this arrest.
Plaintiff was a passenger in a vehicle driven by Elmore LeShoure. Defendant Lieb first noticed the vehicle back out of the driveway of a residence that police knew or suspected was a drug house. (#30, p. 4, ¶ 17). Defendant Lieb checked the registration of the vehicle and learned that the owner was on parole for delivery of cocaine. (#30, p. 4, ¶ 17). The vehicle left the residence along with two other cars. (#30, p. 5, ¶ 19). Defendant Lieb suspected that the occupants of the vehicles were transporting narcotics, based on his knowledge that traveling together is a common strategy, such that one or two cars can acts as decoys and get the attention of police, while the vehicle carrying the narcotics goes undetected. (#30, p. 5, ¶ 21). Defendant Lieb observed that all three vehicles failed to make a complete stop before turning right at an intersection controlled by a four-way stop. (#30, p. 5, ¶ 20). At that point, Defendant Lieb asked Defendant Aikman and Defendant Coon to stop LeShoure's vehicle for this traffic violation, and noted he suspected that the occupants of the vehicles possessed narcotics. (#30, p. 5, ¶ 21).
Then, as requested by Defendant Lieb, Defendant Aikman initiated the traffic stop, pulling over LeShoure's vehicle and another vehicle. Defendant VanAntwerp assisted Defendant Aikman. While Defendant Aikman spoke with LeShoure, Defendant Iverson, a canine officer, began walking around the cars with his canine partner, "Tango," who was trained to alert the officers about the odor or presence of illegal drugs. (#30, p. 6, ¶ 24). Tango indicated that he detected the odor of drugs in both vehicles. (#30, p. 6-7, ¶ 27, 28). Defendant Iverson told Defendant Aikman that Tango had detected drugs. (#30, p. 7, ¶ 31). At that point, Defendant Aikman, standing by the driver's side, asked LeShoure to step out of the car. Defendant VanAntwerp, standing by the passenger's side, asked Plaintiff to step out of the car.
At this juncture, Plaintiff's version of events begins to diverge from Defendants' version of events. Plaintiff alleges that Defendant Aikman patted him down. Plaintiff alleges that, as he was doing this, Defendant Aikman said, "all black people act the same, so he knows I have something on me," and "all you people think alike," and "monkey-coon people never act right." (#1, p. 5). Plaintiff also alleges that the police told him to run. (#1, p. 5). Plaintiff indicates that he attempted to run, but that Defendant Aikman had a grip on him, so he was not able to run.
Then, Plaintiff says that Defendants released the dog on him and allowed the dog to bite him uncontrollably, while they held him down, maced him, and kicked him. (#1, p. 5-6).
Defendants describe the incident much differently. Defendants note that Defendant VanAntwerp began to pat down Plaintiff, and removed two cell phones from his clothes. (#30, p. 8, ¶ 33-35). Then, Defendant Aikman patted down Plaintiff's legs, and felt a hard object in the area of Plaintiff's inner left leg, which Defendant Aikman thought could be a concealed weapon. (#30, p. 8, ¶ 35).*fn1 As the officers began to place Plaintiff's hands behind his back to place handcuffs on Plaintiff, both Defendant Aikman and Defendant VanAntwerp noticed that Plaintiff began to tense up, and he made a fist with his right hand. (#30, p. 8, ¶¶ 37-40). He struck Defendant Aikman in the forearm and started running. (#30, p. 8, ¶ 40).
At this point Defendant Iverson commanded Tango to apprehend Plaintiff. The scuffle that took place next all happened in less than a minute. (#30, p. 11, ¶ 59). Tango bit Plaintiff at least twice, and Plaintiff also struck Tango repeatedly. (#30, p. 9, ¶¶ 43-44). Defendants Aikman, Antwerp, and Iverson managed to get Plaintiff on the ground, as Plaintiff continued to struggle, punch the dog, and attempt to get up. (#30, p. 9, ¶¶ 43-48). Defendant Aikmen then sprayed Plaintiff in the face with pepper spray, forced his hands behind his head, and placed handcuffs on him. Id. After Plaintiff was handcuffed, Officer Iverson immediately called for an ambulance. (#30, p. 9, ¶ 50).
The Court notes that the entire incident was recorded, with both audio and video, from cameras in the officers' squad cars. These recordings have been submitted in to evidence as Group Exhibit 6. The Court has viewed these exhibits. The quality of the audio and video are both good, such that it seems that everything that was said can be heard on the tapes. From the tapes, no Defendant can be heard making any racial comments as Plaintiff has alleged. Plaintiff acknowledges this, and notes that "While there may be video and audio, it will not show all ...