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Michael Seiser v. City of Chicago and Debra Kirby

April 29, 2013


The opinion of the court was delivered by: James F. Holderman, Chief Judge:


On March 29, 2011, Chicago Police Department Officer Michael Seiser ("Officer Seiser") was patrolling in a vehicle while drinking clear liquid from a 1.75-liter liquor bottle. Multiple witnesses alleged that they had seen him driving while drinking from a large bottle that appeared to contain alcohol. Officer Seiser was subsequently arrested for driving under the influence of alcohol and transporting an open container of alcohol in a vehicle. After his arrest, he passed field sobriety tests and a breathalyzer, and a subsequent analysis at a crime laboratory found that the liquid did not contain alcohol. Officer Seiser's complaint alleges claims under 42 U.S.C. § 1983 against Deputy Superintendent Debra Kirby ("Deputy Kirby") in her individual capacity for unlawful detention and for an unreasonable search in the form of the breathalyzer test. (Dkt. No. 1.) The complaint also alleges one claim under state law against the City of Chicago ("the City") for malicious prosecution. (Id.) On February 15, 2013, Deputy Kirby and the City moved for summary judgment on all of Officer Seiser's claims. (Dkt. No. 33.) For the reasons explained below, their motion is granted in its entirety, and summary judgment is entered against Officer Seiser on all claims.


The following facts are undisputed. On March 29, 2011, Officer Seiser was assigned to patrol an area on the South Side of Chicago as part of the Operation Safe Schools Program, from 1 p.m. to 4 p.m. (Dkt. No. 35 ("Defs.' 56.1(a)(3) SMF") ¶¶ 16, 17.) During his shift that day, Officer Seiser was in uniform, but driving his personal vehicle, a Pontiac Grand Am. (Id. ¶¶ 20, 21, 25.) While driving southbound on Union Avenue, Officer Seiser was drinking from a 1.75-liter T.G.I. Friday's Mudslide bottle. (Id. ¶ 18.) T.G.I. Friday's Mudslide is an alcoholic beverage. (Id. ¶ 19.) A label on the bottle stated, "[t]he liquor is in it." (Id.)

At 2:18 p.m., the Chicago Police Department received a phone call from a woman later identified as Kathleen Glassford. (Id. ¶ 20-23.) Glassford called to report an unknown individual driving a silver Grand Am and drinking from what appeared to be a bottle of liquor. (Id.) She reported the license plate number, and then called back 10 minutes later to say that the individual was a police officer. (Id.) Sergeant John Verta ("Sergeant Verta") responded to the scene, and met with Glassford's daughter, Gail Glassford, and another witness, Roseann Anderson. (Id. ¶¶ 8, 23-25.) Both witnesses stated that they observed a police officer driving a gray vehicle while drinking from a gallon-sized bottle of liquor. (Id. ¶¶ 25-26.)

Sergeant Verta then approached Officer Seiser, on the passenger side of Officer Seiser's vehicle. (Id. ¶ 27.) He observed in the front passenger seat what appeared to be a bottle of liquor with a red and white label, a broken seal, and clear liquid inside. (Id. ¶ 27; see also id. ¶ 38.) Sergeant Verta asked Officer Seiser, "What's in the bottle?" (Id. ¶ 28.) Seiser responded: "What bottle?" (Id.) Officer Seiser claims that he told Sergeant Verta that there was no alcohol in the bottle. (Id.) Officer Seiser refused two requests by Sergeant Verta to open the door so he could inspect the bottle, and said that Sergeant Verta would need to "[g]et a warrant" in order to access the vehicle. (Id.) Sergeant Verta testified that he did not smell alcohol on Officer Seiser's breath or hear slurred speech. (Dkt. No. 42 ("Pl.'s 56.1(a)(3) SMF") ¶ 5.)

At this point, Sergeant Verta contacted a watch commander, who told him to bring Officer Seiser to the station and then notified the Internal Affairs Division. (Defs.' 56.1(a)(3) SMF ¶¶ 29-31.) Sergeant Verta drove Officer Seiser to the police station, while Internal Affairs Sergeant Matthew Price ("Sergeant Price") headed to the scene to inspect the vehicle and interview witnesses. (Id. ¶¶ 13, 29-31.) Sergeant Price-after being briefed about Sergeant Verta's encounter with Officer Seiser and given some background about the witnesses-met with Roseann Anderson, Gail Glassford, and another witness, Gary Anderson. (Id. ¶ 37.) Each of these witnesses told him that they had observed a police officer drinking what appeared to be an alcoholic beverage while driving. (Id. ¶¶ 40-42.) Roseann Anderson signed a sworn affidavit alleging the same. (Id. ¶ 40.) Gary Anderson told Sergeant Price that, after attempting to obtain Officer Seiser's license plate number, he had a "confrontation" with Officer Seiser during which he smelled alcohol on Officer Seiser's breath. (Id. ¶¶ 42-44.) Sergeant Price also observed the vehicle, and saw the bottle, which appeared to him to be a partially filled alcoholic beverage bottle. (Id. ¶ 45.)

Sergeant Price then contacted a lieutenant at the Internal Affairs Division, who relayed the information to Internal Affairs Division Chief Juan Rivera ("Chief Rivera"). (Id. ¶¶ 15, 46-47.) Chief Rivera then met with Deputy Kirby, and informed her of all the information that had been relayed up the chain of command from Sergeant Price. (Id. ¶ 46-51.) Deputy Kirby then told Chief Rivera to process Officer Seiser criminally for the offense of driving under the influence of alcohol, and requested that the bottle be retrieved from Officer Seiser's car. (Id. ¶ 54-55.) She also ordered an administrative investigation. (Id. ¶ 56.)

The record is unclear about exactly what time Officer Seiser was taken to the police station, but at 5:52 p.m., he was officially arrested. (Dkt. No. 35, Ex. S, at 1.) The arrest record lists charges of both driving under the influence and transporting an open container of alcohol in a vehicle. (Id.) After Seiser's arrest, Officer Brian Madsen ("Officer Madsen") administered sobriety tests and a breathalyzer at the station. (Id. at 3; Defs.' 56.1(a)(3) SMF ¶ 61.) Officer Seiser passed all of the sobriety tests as well as the breathalyzer test, which showed that he had a blood alcohol content of 0.000. (Defs.' 56.1(a)(3) SMF ¶ 61.) Neither Officer Madsen nor Officer Andrew Kral, who also participated in the investigation after the arrest, perceived anything about Officer Seiser's behavior that indicated he was intoxicated. (Pl.'s 56.1(a)(3) SMF ¶¶ 11-12.)

Officer Seiser was issued a citation for transporting an open container of alcohol in a vehicle. (Defs.' 56.1(a)(3) SMF ¶¶ 62, 65.) He initially refused to allow a search of his personal vehicle as part of the administrative investigation, apparently believing that the search was part of the criminal investigation. (Id. ¶ 68; Dkt. No. 42 ("Pl.'s Resp. to Defs.' 56.1(a)(3) SMF") ¶ 68.) Sergeant Price then issued Officer Seiser a direct order to allow the bottle to be recovered, which Officer Seiser obeyed. (Defs.' 56.1(a)(3) SMF ¶ 69.) At 8:17 p.m., March 29, 2011, Seiser was released on his own recognizance. (Pl.'s 56.1(a)(3) SMF ¶ 19.)

The bottle was recovered and sent to the Illinois State Police laboratory for testing. (Id. ¶¶ 70-71.) On April 29, 2011, a laboratory report was issued by the Illinois State Police indicating that the contents of the bottle had tested negative for alcohol. (Dkt. No. 35, Ex. U.) Officer Madsen attended court on May 18, 2011, for the open container citation and informed the prosecutor that the bottle had tested negative for alcohol. (Defs.' 56.1(a)(3) SMF ¶ 75; Dkt. No. 35, Ex. T.) The court dismissed the charge against Officer Seiser. (Defs.' 56.1(a)(3) SMF ¶ 75.)


A grant of summary judgment is proper "if 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 party moving for summary judgment bears the burden of "informing the court of the basis for its motion and identifying the evidence it believes demonstrates the absence of a genuine issue of material fact." Kurowski v. Shinseki, No. 12 C 1967, 2013 WL 1397708, at *2 (N.D. Ill. April 5, 2013) (Holderman, C.J.) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "There is no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Brewer v. Bd. of Trs. of the Univ. of ...

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