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Dick Lalowski v. City of Des Plaines

October 18, 2012

DICK LALOWSKI, PLAINTIFF,
v.
CITY OF DES PLAINES, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff filed his five count complaint alleging First Amendment retaliation and facially challenging several City of Des Plaines Police Department Rules and Regulations as overly broad under the First Amendment. Before the court are Defendants' motion for summary judgment and Plaintiff's motion for partial summary judgment. For the following reasons, Defendants' motion for summary judgment is GRANTED and Plaintiff's motion for partial summary judgment is DENIED.

I. BACKGROUND

Plaintiff is a former police officer for the City of Des Plaines Police Department and Chapter President of the Metropolitan Alliance of Police, Chapter #240 ("the Union"), which represented fellow Des Plaines officers. He began working for Des Plaines in 1994 and was terminated on May 30, 2008.

In the early morning hours of May 20, 2006, several individuals gathered for a protest outside of the American Women's Medical Center, an abortion clinic located at 110 South River Road in Des Plaines, Illinois. The protesters planned to hold prayer vigils throughout the day, hand out baskets filled with gifts for newborns, and display images of aborted fetuses as part of an attempt to dissuade women from entering the clinic.

The On-Duty Encounter

Sometime around 6:30 am, Plaintiff, on duty and in uniform, drove by the clinic, noticed the protesters, and decided to make contact with them to "inform the [protesters] . . . to abide by the laws of the City of Des Plaines." (Lalowski Dep. 26). Plaintiff pulled his marked police vehicle up to the demonstrators and, while remaining inside his vehicle, began speaking to demonstrator Paula Emmerth. Plaintiff told Emmerth not to impede traffic or to stop anyone from entering the clinic. He told Emmerth and other protesters that he would arrest them if they did not comply.

At this point, the stories diverge. Emmerth claims Plaintiff then called her a "fat fucking cow." (P. Emmerth Dep. 64). She and other demonstrators allege Plaintiff used repeated profanities and threats ("I'll fucking arrest you"), accused the demonstrators of acting like the Taliban, and generally behaved in a way that was intimidating and "out of control." Id. Plaintiff, on the other hand, described this initial confrontation with the demonstrators as "adversarial" but denies using profanity or accusing the demonstrators of acting like the Taliban. (Lalowski Dep. 52).

It is not clear exactly how long this first encounter lasted but Plaintiff appears to have made it back to the Des Plaines police station by approximately 6:45 am, where he changed clothes and returned his equipment. While changing in the locker room, Plaintiff began to think about the images of aborted fetuses the demonstrators were displaying and became upset. He testified in his deposition, "[a]t that time I was thinking about why would somebody put those signs out there, why would anybody who was trying to help people do that [?] I had to know." (Lalowski Dep. 57). Plaintiff decided he would go back to the clinic to confront the demonstrators about their signs.

The Off-Duty Encounter

At approximately 7:15 am, Plaintiff, now off duty and wearing plainclothes, returned to the abortion clinic in his personal vehicle. He parked his car in an adjacent lot and walked over to Officer Matthew Jones, a fellow Des Plaines police officer, who was sitting in an unmarked vehicle in the clinic parking lot. Officer Jones was working "extra duty" that day at the abortion clinic to provide security and ensure the protest remained orderly. Plaintiff greeted Officer Jones and they had a brief conversation about a motorcycle Plaintiff was interested in purchasing from him. Officer Jones then asked Plaintiff why he had come to the clinic, and Plaintiff said the he wanted to speak to the protestors about their signs. Officer Jones told Plaintiff that he "did not want any drama" but did not press Plaintiff any further on the matter. Plaintiff then left Officer Jones to make contact with Paula Emerth.

Plaintiff approached Emmerth, greeted her, and asked if she remembered him. Emmerth said that she remembered him as the police officer who had spoken to her earlier that morning. Plaintiff told her that he was now off duty and "not here representing anybody." (Lalowski Dep. 68). He then asked Emmerth "why she had to show those signs." (Lalowski Dep. 69). Emmerth responded that they were using the signs to tell the truth about abortion. Plaintiff responded by stating, "Okay. Let's talk about the truth then. You're fat." (Defendants' Statement of Facts, ¶ 19). Plaintiff also called her "fatty" in a loud voice in an effort to get her attention. Id.

Plaintiff then started telling Emmerth and other demonstrators who had gathered that they should not show the fetus signs because "the truth sometimes hurts." He stated that a woman who had recently had a miscarriage might drive by and be very upset by the signs. When Emmerth refused to take down the signs Plaintiff called her a "fat fucking cow" and a "sinner of gluttony". (Lalowski Dep. 71; PSOF 25). Plaintiff says he made these statements as a stinging example to Emmerth of how the truth can hurt. Plaintiff then began to lecture Emmerth on the importance of exercise and got down on all fours to demonstrate aerobic exercises she could do to lose weight.

After demonstrating the exercises, Plaintiff got up and continued talking to Emmerth. At some point, he reached out and made physical contact with her. There is a factual disagreement over the manner of the touching. Plaintiff says he patted Emmerth on the shoulder to "convey sincerity." (Lalowski Dep. 81). Emmerth says that Plaintiff "poked" her in both her arms and rubbed her arms "in a creepy, sexual way." (P. Emmerth Dep. 91).

Plaintiff remained at the demonstration for approximately one hour and twenty minutes. During the course of this time he spoke with many demonstrators. There are factual disputes over Plaintiff's specific language, tone of voice, and general demeanor during these conversations. The following facts about the off-duty encounter are not disputed:

a. Plaintiff accused the demonstrators of acting like terrorists and the Taliban.

b. Plaintiff spoke about pedophiles and compared the aborted fetus sign to an image of a Catholic priest bending over a small boy.

c. Plaintiff called demonstrator Wanda Glitz a "psycho" and a "man hater."

d. Plaintiff called Paula Emmerth a "fat fucking cow" several more times and also called her sister Teresa Emmerth "fatty."

e. Plaintiff told Paula Emmerth she would be a beautiful woman if she was not so

fat.

f. Plaintiff asked Paula Emmerth in a sarcastic tone of voice whether she was ...


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