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Anderson v. Moussa

United States District Court, N.D. Illinois, Eastern Division

April 13, 2017

STEPHEN ANDERSON, Plaintiff,
v.
GEORGE MOUSSA and CITY OF CHICAGO, Defendants.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman Judge

         In this 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.

         Background

         The 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).

         Moussa 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.

         The 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 ¶ 18.

         After 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.

         At some 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.

         A 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.

         Anderson 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.

         Discussion

         Section 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. 1989)).

         Section 228 provides:

         Conduct of a servant is within the scope of ...


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