The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Wednesday, 13 March, 2013 11:53:16 AM
Clerk, U.S. District Court, ILCD
This cause is before the Court on the Motion to Dismiss Plaintiff's Complaint Pursuant to 12(b)(6) and 12(f) (Motion) (d/e 9) filed by Defendants Sheriff Neil Williamson, Captain Joseph Roesch, Deputy Travis Dalby, and Deputy Travis Koester.
In July 2012, Plaintiff filed a Complaint against Defendants. The Complaint asserted, pursuant to 42 U.S.C. § 1983, claims of excessive force. Defendants have filed the instant Motion. The Motion is denied.
Plaintiff's July 2012 Complaint stems from an incident that occurred on July 21, 2011, during which Deputy Koester shot Plaintiff twice with a Taser. Plaintiff has brought her two-count Complaint pursuant to 42 U.S.C. § 1983 and alleges the following.
On July 21, 2011, Plaintiff was a passenger in a vehicle driven by Cliffton Flagg. At approximately 11:41 p.m. that night, Deputy Travis Koester of the Sangamon County Sheriff's Department stopped Flagg for making an improper turn. During the stop, Deputy Koester asked Flagg to perform field sobriety tests. Flagg refused. During the arrest of Flagg, Deputy Koester drew his Taser and had another officer handcuff Flagg while Deputy Koester pointed his Taser at Flagg. The officer then placed Flagg in Deputy Koester's squad car.
Deputy Koester then approached the passenger side of Flagg's vehicle and asked Plaintiff for her identification. Deputy Koester informed Plaintiff that she needed to make arrangements to get home and told her to stand next to the other officer, who was near Deputy Koester's squad car. While Plaintiff stood near Deputy Koester's squad car, and after Deputy Koester told Plaintiff she was free to leave, Koester started to search Plaintiff's purse that Plaintiff had left in Flagg's vehicle. Plaintiff ran toward Deputy Koester and told him he had no right to search her purse. Deputy Koester said he was not searching Plaintiff's purse, rather he was inventorying it. Deputy Koester told Plaintiff she was not under arrest and free to leave.
Deputy Koester drew his Taser as Plaintiff approached. Deputy Koester told Plaintiff she was under arrest for resisting a police officer and ordered her to turn around and place her hands behind her back. Plaintiff again informed Deputy Koester that he could not search her purse. Deputy Koester responded that Plaintiff would be Tased if she did not obey his lawful commands. Deputy Koester then Tased Plaintiff. At the time Deputy Koester Tased Plaintiff, Plaintiff's hands were at her side, her palms were open, and she was stepping away from Deputy Koester.
As Plaintiff lay on the ground, Deputy Koester told Plaintiff to turn over and put her hands behind her back. Deputy Koester gave Plaintiff no more than three seconds to comply before he Tased Plaintiff again. Plaintiff was then taken into custody.
The general allegations of the Complaint included references to and quotations from both the 2011 Electronic Control Weapon Guidelines (Guidelines) and the Sangamon County Sheriff's Taser Policy and Procedures (Sheriff's Procedures), which Plaintiff has attached to the Complaint as Exhibits 2 and 4, respectively. The Complaint alleges that the Sheriff's Procedures require any discharge of a Taser to be investigated and documented by the Shift Supervisor and forwarded to the Division Commander. Therefore, Captain Roesch should have known of Koester's illegal, improper, and unwarranted Taser shootings by Deputy Koester from 2006 to the present. At no point, since July 2005, have Sheriff Williamson, Captain Roesch, Deputy Dalby, or any other Sangamon County Sheriff's Office employee, disciplined or removed Deputy Koester from duty for these Taser shootings. According to the Complaint, this leads to the conclusion that "the Sangamon County Sheriff's Office has adopted an unwritten custom and practice of shooting their Tasers at individuals who offer no physical threat to a deputy/officer in order to gain compliance for verbal commands." Moreover, the Complaint alleges that these practices were known or should have been known by Defendants.
The Complaint contains two Counts. Count I is brought against Deputy Koester in both his individual and official capacity, and against all remaining Defendants in their official capacities. Count I alleges Deputy Koester's first deployment of the Taser against Plaintiff was unreasonable and constituted the excessive use of force. This Count also alleges there was an established pattern and practice whereby Deputy Koester had Tased numerous nonviolent individuals for failing to fully comply with verbal commands and that this pattern and practice led to the violation of Plaintiff's constitutional rights.
Count II is likewise brought against Deputy Koester in both his individual and official capacity and against all remaining Defendants in their official capacities. Count II alleges Deputy Koester's second deployment of the Taser against Plaintiff was unreasonable and constituted the excessive use of force. This Count also alleges that "[i]n training Deputy Koester to shoot numerous individuals who were unable to understand commands or nonviolent and compliant after initially being Tased, ...