United States District Court, C.D. Illinois, Springfield Division
GEORGE H. DAWSON, Plaintiff,
MICHAEL BROWN, individually, CHANCE WARNISHER, individually, and STEVE STIRMELL, individually, Defendants
For George H Dawson, Plaintiff: Bradley B Wilson, GATES WISE & SCHLOSSER PC, Springfield, IL.
For Michael Brown, Springfield Illinois Police Department, Chance Warnisher, Springfield Illinois Police Department, Defendants: Geannette S Wittendorf, Gwendolyn Drake, Steven C Rahn, CITY OF SPRINGFIELD, Code Enforcement Div Corporation Counsel, Springfield, IL.
Richard Mills, United States District Judge.
This is a civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff George H. Dawson has filed a six-count Complaint asserting excessive force, assault and battery, failure to intervene and conspiracy to interfere with the Plaintiff's civil rights against Michael Brown, Chance Warnisher and Steve Stirmell in their individual capacities.
Pending before the Court is a Motion for Summary Judgment filed by Defendants Michael Brown and Chance Warnisher.
In Count I, the Plaintiff brings a § 1983 claim against City of Springfield Police Officer Chance Warnisher, asserting that he used excessive force in effectuating his arrest.
In Count II, the Plaintiff asserts assault and battery claims, alleging that Warnisher intentionally kicked the Plaintiff in the torso without any cause, encouragement, provocation or consent by the Plaintiff.
In Count III, the Plaintiff brings a § 1983 claim against City of Springfield Police Officer Michael Brown, asserting that he used excessive force in effectuating the Plaintiff's arrest.
In Count IV, the Plaintiff contends Brown committed the torts of assault and battery on the Plaintiff, alleging that he pushed or tackled the Plaintiff to the ground without cause, encouragement, provocation or consent by the Plaintiff.
Count V is addressed solely at Defendant Steve Stirmell and is addressed in a separate Opinion and Order.
In Count VI, the Plaintiff alleges that Warnisher and Brown conspired with each other and Stirmell to deprive the Plaintiff of his statutory and constitutional rights to be free from the use of unreasonable force and unlawful arrest.
Defendants Warnisher and Brown claim they are entitled to summary judgment on Counts I-IV and VI. The Plaintiff contends that because there are multiple accounts of what occurred immediately prior to and during the Plaintiff's arrest, factual disputes preclude the entry of summary judgment as to those claims.
II. FACTUAL BACKGROUND
A. George Dawson's testimony
Plaintiff George Dawson resides at 2408 South Lowell Road in Springfield, Illinois. On December 14, 2011, the Plaintiff answered a knock on his door. There were seven or eight police officers present.
The police officers inquired if the Plaintiff knew where his son was. The Plaintiff testified that one of the officers, a sheriff's deputy, told him that his son, Greg Dawson, was a drug dealer. On the evening in question, the Plaintiff's son was driving a 2010 Chevy pickup truck that belongs to Country Market, the Plaintiff's business. While the officers looked for his son, the Plaintiff remained outside of his home talking to officers and standing in his driveway. At some point, the Plaintiff became aware of an altercation occurring near the side door of his home. He could not recall how long this was after the officers knocked at his door. The Plaintiff testified he went to the side of his house and observed Officer Chance Warnisher, and perhaps another officer, attempting to subdue Greg Dawson in the driveway by the side door of the home.
The Plaintiff alleges he observed Officer Warnisher use his taser on Greg Dawson. He testified that while Warnisher or perhaps another officer was holding Greg Dawson down, the Plaintiff approached with his palms up. The Plaintiff testified that when he was three to four feet from Warnisher, the officer--who was bent over Greg Dawson--kicked out at the Plaintiff and struck him. The Plaintiff saw the kick coming and turned sideways. Warnisher did not give the Plaintiff any warning that he was about to kick him and the first notice he had is when the kick was approaching. The Plaintiff testified that the kick did not cause him to fall to the ground and that immediately after the kick another officer tackled him from behind and drove him to the ground. The Plaintiff thinks it was Officer Brown who tackled him from behind.
The Plaintiff testified he never touched any of the officers before being kicked by Officer Warnisher and tackled by the other officer. After he was tackled, the Plaintiff got right up and sat on the stairs. He was dazed and some of the details are blurry. Except for being kicked and then shoved or tackled thereafter, the Plaintiff was not physically struck at any other time on the night of the incident. There were no words spoken between him and the officers between the time he was kicked and when he was struck from behind by Officer Brown.
An ambulance arrived at the scene. Although the Plaintiff told the arresting officer he was bleeding, he was not then taken to the emergency room. The Plaintiff's daughter took him there after booking.
B. Defendant Steve Stirmell's testimony
On December 14, 2011, Steve Stirmell was employed as a police officer for the Village of Jerome. Stirmell observed a pick-up truck speeding on Iles Avenue at 10:28 p.m., and activated his siren. Despite the siren, the truck did not stop. The truck eventually stopped in the 2400 block of Lowell, in front of the residence belonging to George Dawson. The driver of the truck got out and attempted to enter the residence at 2408 Lowell as Stirmell pursued him on foot. The individual then took off running again and went over a fence in the backyard.
After the suspect jumped over the fence, Officer Stirmell ceased pursuit and began to search the white pick-up truck. During the search, a Springfield police car driven by Officer Brown arrived on the scene. At some point, Stirmell was informed by dispatch
that the individual who was driving the truck had a warrant out for his arrest for dangerous drugs. It was later determined that the information provided by dispatch did not, in fact, apply to the Plaintiff's son but rather to another individual named Greg Dawson. Stirmell testified that the fact that an individual is wanted on a warrant for dangerous drugs would not cause him to treat that person any differently than any other individual who fled from a traffic stop.
Officer Warnisher eventually arrived on the scene. Based upon the information provided by dispatch, Stirmell advised Brown and Warnisher there was an outstanding warrant for Greg Dawson's arrest on a charge related to dangerous drugs. Subsequently, Stirmell and Warnisher knocked on the front door of Mary and George Dawson's home and Warnisher advised them that Greg Dawson had fled from ...