United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
suit brought under 42 U.S.C. § 1983, Stephen Anderson
alleges that George Moussa, a Chicago police officer, used
excessive force to arrest him during a 2013 altercation that
took place in DuPage County while Moussa was off-duty;
Anderson also alleges that state law, 745 ILCS 10/9-102,
requires the City of Chicago to foot the bill for any
judgment he obtains against Moussa. Doc. 1. Discovery has
closed, and a jury trial is set for May 22, 2017. Doc. 42.
The City, but not Moussa, has moved for summary judgment.
Doc. 45. The motion is granted.
following facts are set forth as favorably to Anderson as the
record and Local Rule 56.1 permit. See Hanners v.
Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary
judgment, the court must assume the truth of those facts, but
does not vouch for them. See Arroyo v. Volvo Grp. N. Am.,
LLC, 805 F.3d 278, 281 (7th Cir. 2015).
is a Chicago police officer. Doc. 55 at ¶ 11. In 2013,
Anderson and his then-wife, Moussa's sister, began having
marital trouble, which eventually led to their divorce.
Id. at ¶¶ 2-4. Moussa's sister sought
a restraining order against Anderson, alleging physical
abuse. Doc. 47-2 at 3, pp. 7-8; Doc. 55 at ¶ 10. Moussa
believed the abuse allegations, though Anderson denies them.
Doc. 47-3 at 6, p. 38; Doc. 55 at ¶ 6.
events at issue took place on the morning of December 5,
2013, when both Anderson and Moussa went to the DuPage County
courthouse in Wheaton, Illinois, to attend a hearing on the
proposed restraining order. Doc. 55 at ¶¶ 16-17.
Moussa was off-duty, wearing civilian attire-slacks and a
suit jacket-and was not carrying any police gear, though he
was carrying a personal firearm. Doc. 47-3 at 21, pp. 139-40;
Doc. 55 at ¶¶ 11, 15, 28. He planned to testify on
his sister's behalf. Doc. 47-3 at 8, p. 59; Doc. 55
parking his car and walking toward the courthouse, Moussa
spotted Anderson in the parking lot, approached his car, and,
when Anderson rolled down his window, told him, “I want
to talk to you.” Doc. 55 at ¶ 19; Doc. 59 at
¶¶ 6-7; Doc. 54-3 at 8, pp. 22-23. Anderson put his
car in park and got out. Doc. 59 at ¶ 7. The two men
began to argue, with Moussa calling Anderson a bad father and
“a wife beater” and Anderson telling Moussa he
was “all talk, just like [his] dead father.” Doc.
54-2 at 26, p. 97; Doc. 54-3 at 8, pp. 22-23; Doc. 55 at
¶¶ 20-21; Doc. 59 at ¶ 8. Anderson got back in
his car, at which point Moussa said, “If you get out of
your car like that again in front of me, I'm going to
take you to jail today.” Doc. 54-2 at 26, pp. 98-99;
Doc. 59 at ¶ 9. Anderson pulled his car forward, parked
it, and got out again. Doc. 59 at ¶ 10. The two men
continued to exchange words. Id. at ¶ 11.
point, Moussa approached Anderson, grabbed his right arm, and
attempted to throw him to the ground, sparking a physical
struggle. Doc. 55 at ¶ 23; Doc. 59 at ¶ 11.
Anderson tried to break free and get back into his vehicle,
at which point Moussa told Anderson to “stop
resisting.” Doc. 54-2 at 29, p. 110-12; Doc. 59 at
¶¶ 12, 15. Moussa also grabbed Anderson's keys
out of the ignition and threw them to the floor. Doc. 59 at
¶ 15. Moussa admits that he was attempting to arrest
Anderson, though he testified that he viewed it as a
“citizen's arrest.” Doc. 54-2 at 26, pp.
105-06; id. at 29, p. 112; Doc. 55 at ¶ 25.
Anderson suffered multiple dislocated fingers during the
struggle. Doc. 59 at ¶ 14.
courthouse security guard approached, with DuPage County
Sheriff officers some distance behind. Id. at ¶
16. Moussa identified himself as a police officer to the
security guard and asked if he had any handcuffs. Doc. 54-2
at 32, pp. 121-22; Doc. 59 at ¶ 16. The DuPage County
sheriff officers, arriving on the scene, told Anderson to get
out of the car, and he complied. Doc. 54-2 at 32, p. 123;
Doc. 59 at ¶ 18. Moussa and the security guard each held
one of Anderson's arms behind his back while the security
guard secured the handcuffs around Anderson's wrists.
Doc. 54-2 at 32, pp. 122-23; Doc. 59 at ¶ 17. Once
Anderson was in the sheriff officers' custody, Moussa
left the parking lot, entering the courthouse through a back
door reserved for police officers. Doc. 59 at ¶ 20.
was charged with violating an order of protection, assault,
and resisting/obstructing a police officer. Id. at
¶ 21. A Wheaton police department arrest report
identified Moussa as the officer Anderson allegedly resisted.
Doc. 54-4 at 2; Doc. 59 at ¶ 21.
9-102 permits a § 1983 plaintiff suing a municipal
employee to recover any judgment from the municipal employer
“only if the employee was acting within the scope of
his employment, that is, only if the employer would be liable
for the employee's acts under the principle of respondeat
superior … .” Wilson v. City of
Chicago, 120 F.3d 681, 685 (7th Cir. 1997); see also
Argento v. Vill. of Melrose Park, 838 F.2d 1483, 1494
& n.18 (7th Cir. 1988) (holding that Section 9-102 makes
Illinois municipalities liable for § 1983 torts
committed by their employees within the scope of employment);
Kolar v. Cnty. of Sangamon, 756 F.2d 564, 566 (7th
Cir. 1985) (same). “To ascertain when an employee's
conduct is within the scope of employment, the Illinois
Supreme Court has adopted § 228 of the Restatement
(Second) of Agency.” Copeland v. Cnty. of
Macon, 403 F.3d 929, 932 (7th Cir. 2005) (citing
Pyne v. Witmer, 543 N.E.2d 1304, 1308-09 (Ill.
of a servant is within the scope of ...