JEFFREY T. JONES and CHARLENE VINCENT, Plaintiffs,
SHAWN PETTIT, Police Officer, City of Lincoln; KEITH DeVORE, Police Officer, City of Lincoln; and KEVIN LYNN, Police Officer, City of Lincoln, Defendants.
SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on the Motion for Summary Judgment filed by Defendants' Shawn Pettit, Keith DeVore, and Kevin Lynn (d/e 27). The Motion for Summary Judgment is DENIED. Defendants have not demonstrated that no genuine issue of material fact exists for trial or that they are entitled to judgment as a matter of law.
This lawsuit arises out of two incidents. The first occurred on July 5, 2008 after Plaintiffs Jeffrey T. Jones and Charlene Vincent left a tavern in Lincoln, Illinois. A confrontation occurred in the parking lot that ultimately resulted in Jones' arrest. The second incident occurred on August 18, 2009,  when authorities arrested Jones after another individual allegedly shot at Jones.
In June 2010, Plaintiffs filed a two-count Complaint pursuant to 42 U.S.C. § 1983. Compl. (d/e 1). In Count 1, Jones alleged that Defendants, acting under color of law, caused Jones to suffer personal injury and subjected him to unlawful arrest. Compl. § 50. In Count 2, Vincent alleged that Defendants, acting under color of law, caused Vincent to suffer personal injuries. Compl. § 54.
The Complaint and Plaintiffs' Response to Defendants' Motion for Summary Judgment set forth the following claims: (1) a § 1983 claim by Jones against Pettit for excessive force arising out of a July 5, 2008 incident; (2) a § 1983 claim by Jones against Officers DeVore and Lynn for false arrest arising out of a July 5, 2008 incident; (3) a § 1983 claim by Jones against Officer DeVore for excessive force arising out of an August 18, 2009 incident; (4) a § 1983 false arrest claim by Jones against Officer DeVore arising out of an August 18, 2009 incident; and (5) a § 1983 excessive force claim by Vincent against Pettit arising out of a July 5, 2008 incident.
In August 2012, Defendants filed their Motion for Summary Judgment (d/e 27). Defendants assert that (1) Pettit was not acting under color of law; (2) a constitutional violation did not occur during the July 5, 2008 arrest of Jones; (3) collateral estoppel mandates dismissal of the claims made in connection with the August 18, 2009 incident; (4) Jones cannot seek damages for the alleged excessive force during the August 18, 2009 incident because such recovery would undermine his criminal conviction in state court; and (5) Defendants are entitled to qualified immunity. In February 2013, Plaintiffs filed their Response. Defendants have not filed a Reply.
Defendants do not set forth the purported undisputed facts that describe the incidents that occurred on July 5, 2008 and August 18, 2009. Therefore, the following facts are taken primarily from the Additional Material Facts listed in Plaintiffs' Response to Defendants' Motion for Summary Judgment. Citations to the deposition transcripts attached by both Plaintiffs' and Defendants' pleadings will be made to those attached to Defendants' Motion for Summary Judgment. The page numbering on the deposition transcripts attached to Plaintiffs' Response are slightly different than those on Defendants' copies. See Affidavit of Attorney Douglas A. Muck explaining that the depositions transmitted to him by email contained two sets of page numbering.
A. Facts Pertaining to the July 5, 2008 Incident
While standing in the parking lot after leaving the Alley-Bi tavern, Jones spoke to Jason Lucas. Jones Fact No. 1; Vincent Fact No. 10. Jones testified that Lucas was an off-duty police officer and Jones had known Lucas for years. See Jones Dep. p. 17. While Jones was talking to Lucas, two men ran toward Jones, Vincent, and Lucas. See Jones Fact No. 1; Vincent Fact No. 11.
Jones described what occurred thereafter as follows. Pettit was one of the men who ran up to Jones and Vincent in the parking lot. Jones Fact No. 1. Jones testified Pettit came running up because Pettit assumed Jones was messing with Officer Lucas. Jones Fact No. 70. Plaintiffs also cite to Pettit's deposition testimony that Pettit followed Jones toward Plaintiffs because Pettit did not know who Jones was and that Pettit was "not going to let another officer, friend, or anybody that's a friend go, potentially whatever might have happened, do it alone." Pls.' Fact No. 66.
Pettit shoved Jones. Jones Fact No. 1; see also Jones Fact No. 13 (describing the shove as a poke in the shoulder). Vincent said, "[W]hoa, you don't want to do that" and put her hands up. Jones Fact No. 1. Pettit grabbed Vincent's hand, bending her fingers back so far that it pulled off her rings. Jones Fact No. 1.
Jones told Pettit not to touch Vincent. Jones Fact No. 2. Lucas was standing between Jones and Pettit, trying to calm everyone down. Jones Facts Nos. 2, 3. Pettit reached around Lucas and shoved Jones' shoulder again. Jones Fact No. 3; see also Jones Fact No. 13 (describing the second shove as an attempt to shove Jones backward); Jones Fact No. 15 (describing the second shove as a punch to the chest). Vincent put her hands up and said, "[L]ook, I'm telling you, you don't want to do that." Jones Fact No. 3. Pettit reached out and grabbed Vincent by the throat. Jones Fact No. 3.
Pettit reached around one more time, and Vincent tried to stop him. Jones Fact No. 5. Pettit again grabbed Vincent by the throat. Jones Fact No. 5. Jones hit Pettit one time. Jones Fact No. 5.
After Jones hit Pettit, "they" got them apart. Jones Fact 11; see also Jones Dep. p. 24 (not identifying who "they" are). Pettit started yelling threats at Jones and told Jones his address, saying "come get some." Jones Fact No. 11; see also Vincent Fact Nos. 26, 27, 28, 29 (someone was telling Jones to meet them at a certain address, trying to egg Jones on). Lucas told Pettit to shut up but Pettit would not stop threatening Jones and telling Jones to come to Pettit's house. Jones Fact No. 11; see also Jones Dep. p. 25. Lucas told Jones to leave. Jones Fact No. 12. Jones and Vincent left. Jones Fact No. 12; see also Jones Dep. p. 25.
Vincent described the same incident as follows. As Pettit ran up to them, Vincent put her hands up and said, "you don't want to do that." Vincent Fact No. 13. Vincent knew Pettit was running up to start something with Jones because people liked to start fights with Jones. Vincent Facts No. 17, 18, 19.
Pettit pushed Vincent's hands down, took her face, and turned her head. Vincent Fact No. 13. Pettit also knocked Vincent's ring off her finger. Vincent Fact No. 22. Pettit picked up Vincent's ring. Vincent Fact No. 22. According to Vincent, the next thing that happened was that Pettit got hit. Vincent Fact No. 22. Vincent did not see who hit Pettit. Vincent Fact 23.
After Jones and Vincent returned to their motel, three police cars arrived. Jones Fact No. 18; Vincent Fact Nos. 34, 35. Both Officer Lynn and Officer DeVore were present. Jones Fact No. 18. Jones was arrested for aggravated battery. Jones Fact No. 19. Vincent testified that Officer Lynn told them Jones was arrested for battery of a cop, and that is when they found out Pettit was a cop. Vincent Fact No. 37; Jones Fact No. 7 ("Jones found out later that Pettit was an off duty Lincoln Police officer").
During the arrest, Officer Lynn said, "we are going to show you what happens when you f___' with one of ours." Jones Fact No. 19; see also Jones Dep. p. 29; Vincent Fact No. 59 (an officer said, "that's what you get when you mess with one of ours"). Jones was placed in handcuffs and did not resist. Jones Fact Nos. 26, 27. The arrest was very professional. Jones Fact No. 28; see also Jones Dep. p. 32 (DeVore was very professional); Jones Dep. p. 39 (DeVore was very professional about the whole thing).
Vincent, however, testified that Officer Lynn was an asshole to her. Vincent Fact No. 49. Vincent wanted Pettit arrested for laying hands on her but was told they could not arrest Pettit because he was a police officer. Vincent Fact Nos. 60, 61.
Jones was held in jail for five days before he was charged and "put a bond on" him. Jones Fact No. 23; see also Jones Dep. p. 31. At his first appearance, all charges were dropped, and Jones got his bond money back ...