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Lalowski v. City of Des Plaines

United States Court of Appeals, Seventh Circuit

June 17, 2015

DICK V. LALOWSKI, Plaintiff-Appellant,
v.
CITY OF DES PLAINES, et al., Defendants-Appellees

Argued September 10, 2013.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:08-cv-03780 -- James B. Zagel, Judge.

For Dick v. Lalowski, Plaintiff - Appellant: Keith A. Karlson, Attorney, Hinsdale, IL.

For CITY OF DES PLAINES, a municipal corporation, Defendant - Appellee: Lucy B. Bednarek, Attorney, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, P.C., Chicago, IL.

For DES PLAINES BOARD OF FIRE AND POLICE COMMISSIONERS, a municipal corporation, Defendant - Appellee: Charles E. Hervas, Attorney, Hervas, Condon & Bersani, Itasca, IL.

For JAMES PRANDINI, individually, and as Chief of Police for City of Des Plaines, Defendant - Appellee: Ellen Kornichuk Emery, Attorney, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, P.C., Chicago, IL.

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

OPINION

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Tinder, Circuit Judge.

Dick Lalowski was formerly a police officer for the City of Des Plaines, Illinois. However, on the morning of May 20, 2006, he had two altercations with a group of demonstrators at an abortion clinic, one while he was on duty and the other shortly after his shift ended. Lalowski's conduct during these altercations led the City's police chief at the time, James Prandini, to file charges against him with the Des Plaines Board of Fire and Police Commissioners and to recommend his discharge. The Board held two sets of administrative hearings, one on the merits of the charges against Lalowski and the other on the appropriate penalty. After the first set of hearings, the Board voted unanimously to sustain the charges, and after the second set of hearings, it voted unanimously to terminate Lalowski's employment. The Board issued a written decision on May 30, 2008.

On July 2, 2008, Lalowski filed this action against Prandini, the Board, and the City. He brought five claims, but only two are at issue in this appeal: (1) a claim against all three defendants under 42 U.S.C. § 1983, alleging that they retaliated against him for his protected speech in violation of the First Amendment; and (2) a claim against the Board under Illinois's Administrative Review Law, 735 I.L.C.S. § § 5/3-101 et seq., seeking review of the Board's decision to terminate his employment. The district court granted summary judgment against Lalowski on both claims, and he appeals that ruling.

I. SPEECH RETALIATION CLAIM

The parties filed cross-motions for summary judgment on Lalowski's speech retaliation claim under the First Amendment. " On review of cross-motions for summary judgment, we view all facts and inferences in the light most favorable to the nonmoving party on each motion." Wis. Alumni Research Found. v. Xenon Pharms., Inc., 591 F.3d 876, 882 (7th Cir. 2010). Summary judgment is appropriate if " 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). Below, we recite the facts relevant to Lalowski's speech retaliation claim that were before the district court on summary judgment. These facts are undisputed unless otherwise noted.

A. Summary Judgment Record

During the early morning hours of May 20, 2006, a group of demonstrators gathered outside an abortion clinic in Des Plaines, Illinois. The demonstrators hoped to dissuade women from entering the clinic, and as part of that effort, they planned to display large signs containing images of aborted fetuses. Meanwhile, then-Officer Lalowski was nearing the end of an overnight shift. Around 6:30 a.m., he noticed the demonstrators setting up, and he pulled his marked police vehicle up to them and began speaking to a woman named Paula Emmerth. Lalowski told Emmerth not to impede traffic or to stop anyone from entering the clinic. He also told the demonstrators that he would arrest them if they did not comply.

At this point, the stories diverge. Emmerth claims Lalowski called her a " fat fucking cow." She and other demonstrators also claim that Lalowski used repeated profanities and threats (e.g., " 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." Lalowski, on the other hand, concedes that this initial

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confrontation with the demonstrators was " adversarial" but denies using profanity or accusing them of acting like the Taliban. In any event, this first exchange lasted only a few minutes. Upon request, Lalowski provided the demonstrators with his name and badge number, then he ...


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