Kassay v. McCulloh et al

Filing 76

Opinion and Order Signed by the Honorable Joan H. Lefkow on 5/5/2011:Mailed notice(mad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEFFREY CONNOR KASEY,
Plaintiff,
v.
OFFICER G.J. McCULLOH, STAR #454,
OTHER UNKNOWN NORTHFIELD
POLICE OFFICERS, and the VILLAGE
of NORTHFIELD,
Defendants.

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No. 09 C 1957
Hon. Joan H. Lefkow

OPINION AND ORDER
Jeffrey Kasey filed an amended complaint against Officer G.J. McCulloh and the Village
of Northfield under 42 U.S.C. § 1983 for false arrest and excessive force in violation of the
Fourth and Fourteenth Amendments to the United States Constitution. He also brings a state law
malicious prosecution claim against McCulloh and seeks indemnification from the Village of
Northfield. Before the court is defendants’ motion for summary judgment. For the following
reasons, the motion [#48] is granted in part and denied in part.
LEGAL STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings
and assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed. R. Civ. P. 56(c) & advisory committee’s notes. The
party seeking summary judgment bears the initial burden of proving that there is no genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986). In response, the nonmoving party cannot rest on mere pleadings alone but must use
the evidentiary tools listed above to designate specific material facts showing that there is a
genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir.
2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at
598–99. Although a bare contention that an issue of fact exists is insufficient to create a factual
dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all
facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986).
BACKGROUND1
On February 2, 2008, Kasey, at the time a seventeen year old high school student,
attended a birthday party at a friend’s house in Northfield, Illinois. Attendees were drinking
alcohol, and Kasey admits to having had approximately three beers. Around midnight, Courtney
Anderson, a friend of Kasey’s, left the party to tell a cab waiting in the driveway that another
guest would be out shortly. McCulloh, a Northfield police officer, was patrolling in the area at
the time when he saw the cab and a female, presumably Anderson, walking out to it. Suspecting
a party, as there were more cars parked on the street than usual, McCulloh parked near the house.
Shortly thereafter, Kasey came outside the house to call his father. He saw Anderson speaking
to someone inside a car parked about fifty feet from the house. He headed toward the car,

1

The facts set forth in this section are derived from the statements of fact submitted by the parties
and are taken in the light most favorable to Kasey, the nonmovant.

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believing it to be the aforementioned cab. When he was about eight to ten feet away from the
car, he realized it was instead a Northfield Police car and turned back toward the house.
The parties dispute what happened next. McCulloh claims he observed an intoxicated
minor, Kasey, approaching. He states that Kasey’s face appeared droopy and flaccid, that his
eyes were glassy and bloodshot, and that he sauntered up to the vehicle. McCulloh then exited
his car, asked Kasey to approach, and, after Kasey said he was going back inside the house to
wait for his dad, ordered Kasey to stop. When Kasey did not stop, McCulloh grabbed Kasey’s
elbow. Kasey pulled away, leading McCulloh to grab Kasey in a bear hug and tell him he was
under arrest for underage drinking. While held by McCulloh, Kasey was yelling and moving
around. After about a minute, Kasey agreed to cooperate with McCulloh, at which point
McCulloh loosened his grip so as to reach his handcuffs. Kasey broke free and began running.
McCulloh, who had called for backup, ran after Kasey. After Kasey had run through several
yards and jumped at least one fence, McCulloh took out his taser and flashed its light beam in
Kasey’s line of vision. McCulloh warned Kasey that if he continued to resist, he would be
tasered. Kasey was also told to walk back toward McCulloh, who was standing on the other side
of a fence, and drop to his knees when he neared the fence. At that point, another officer, Officer
Brown, attempted to handcuff Kasey, who stood back up and continued to resist. McCulloh then
yelled “taser” and deployed the taser. After hearing a noise indicating the taser was ineffective
and observing Kasey’s continued resistance to arrest, McCulloh deployed the taser a second
time, which led Kasey to fall to his knees. Because Kasey would not move his arms from under
his body to allow Brown to handcuff him, McCulloh deployed the taser a third time, after which
Kasey was handcuffed.

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Kasey, on the other hand, maintains that he did not appear at all intoxicated. He claims
not to have done anything to arouse suspicion, such as walk out of the house stumbling, with a
beer in hand, or smoking. Kasey states that McCulloh grabbed him, threw him against the car,
lifted him off the ground, and told him he was under arrest without specifying the charges
despite many questions to that end. Kasey was able to break away from McCulloh and began
running. He continued to run until McCulloh fired the taser at him without warning, at which
point he was immobilized. The taser was then used two more times, the third time while Kasey
was facedown.
After being tasered and handcuffed, Kasey was taken to a hospital where the taser barbs
were removed. He was charged with consuming alcohol as a minor, possession of marijuana,
and resisting arrest. He admitted to these charges after his arrest. A breathalyzer test returned a
blood alcohol level of 0.0062. Nonetheless, as Kasey was a juvenile arrested for a first-time
offense, his case was diverted directly to informal supervision without any charges being brought
against him in court. No finding of guilt or innocence was made, and Kasey did not contest his
supervision. He subsequently had all charges and records related to his arrest expunged.
ANALYSIS
I.

False Arrest Claim
To prevail on his false arrest claim under 42 U.S.C. § 1983, Kasey must establish the

absence of probable cause for his arrest. See Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998).
Probable cause existed if “at the moment the arrest was made . . . the facts and circumstances
within [McCulloh’s] knowledge and of which [he] had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that [Kasey] had committed or was committing

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an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); see also
Thompson v. Wagner, 319 F.3d 931, 934 (7th Cir. 2003). Probable cause is evaluated “not on
the facts as an omniscient observer would perceive them but on the facts as they would have
appeared to a reasonable person in the position of the arresting officer – seeing what he saw,
hearing what he heard.” Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992). “[P]robable
cause demands even less than probability; it requires more than bare suspicion but need not be
based on evidence sufficient to support a conviction, nor even a showing that the officer’s belief
is more likely true than false.” Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000)
(citations omitted) (internal quotation marks omitted); see also Maryland v. Pringle, 540 U.S.
366, 370–71, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003) (“The probable-cause standard is
incapable of precise definition or quantification into percentages because it deals with
probabilities and depends on the totality of the circumstances.”).
Determining whether probable cause exists is necessarily a fact-intensive inquiry. Jones
by Jones v. Webb, 45 F.3d 178, 180 (7th Cir. 1995). Consequently, summary judgment is
inappropriate where material facts regarding the existence of probable cause are in dispute. See
id. (“Whether an officer had probable cause to make an arrest generally will present a question
for the jury, although the court can decide it when the material facts are not disputed.”);
Schertz v. Waupaca County, 875 F.3d 578, 582 (7th Cir. 1989) (“While Section 1983 claims
presenting the question of probable cause are generally inappropriate for disposition on summary
judgment, this is true only where there is room for a difference of opinion.”).
Kasey’s false arrest claim, as pleaded in the amended complaint, solely attacks his arrest
for resisting a police officer. In his response to defendants’ motion for summary judgment, he

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also claims that McCulloh lacked probable cause to arrest him for consumption of alcohol by a
minor. A plaintiff may not amend his complaint in response to a motion for summary judgment,
however. Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004).
Although not properly before the court, the parties’ divergent accounts of what happened
when Kasey approached McCulloh’s vehicle would preclude summary judgment on whether
McCulloh had probable cause to arrest Kasey for underage drinking. If a jury believed
McCulloh, it would be reasonable for it to find that probable cause existed: McCulloh testified
that Kasey’s face appeared droopy and flaccid, that his eyes were glassy and bloodshot, and that
he sauntered up to the vehicle. If a jury believed Kasey that he had no observable signs of
intoxication, however, it would be difficult to find probable cause.2 It is not the court’s role to
determine which version of events to credit. See Anderson, 477 U.S. at 255 (“Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge, whether he is ruling on a motion for summary
judgment or for a directed verdict.”); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“As
we have said many times, summary judgment cannot be used to resolve swearing contests
between litigants.”).
This, however, does not preclude a finding that there are no disputed material facts
surrounding Kasey’s arrest for resisting arrest. Illinois law provides that a person commits a
Class A misdemeanor when he knowingly resists or obstructs the performance of an authorized
act by a police officer. 720 Ill. Comp. Stat. 5/31-1. Kasey was not authorized to resist arrest

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Whether McCulloh had reasonable suspicion to conduct a Terry stop, which developed into
probable cause for arrest, has only been alluded to in passing by defendants. This issue would also be
open to dispute and thus inappropriate for resolution on summary judgment.

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even if the arrest was unlawful. 720 Ill. Comp. Stat. 5/7-7; Chelios v. Heavener, 520 F.3d 678,
688 (7th Cir. 2008). Kasey admits to fleeing from McCulloh after McCulloh told him he was
under arrest. As flight constitutes resistance, this admission alone establishes probable cause.
Kasey responds that his resistance was authorized, however, as his right to act in selfdefense was triggered by McCulloh’s allegedly unjustified use of force against him in
effectuating the initial arrest. See People v. Wicks, 823 N.E.2d 1153, 1156, 355 Ill. App. 3d 760,
291 Ill. Dec. 567 (2005) (“A person may not use force to resist arrest by a known police officer,
even if the arrest is unlawful. An exception to this rule is made when the officer uses excessive
force. Use of excessive force by a police officer invokes the arrestee’s right of self-defense.”).
While Kasey may have had a defense to a charge of resisting arrest on this basis,3 this exception
to the general rule does not preclude a finding that probable cause existed. The issue for
probable cause is whether a reasonable person in McCulloh’s shoes, knowing what he did, would
have believed that Kasey was resisting arrest by struggling with and fleeing from him. As there
is no doubt that Kasey was told that he was under arrest and thereafter fled from McCulloh’s
custody, summary judgment is appropriate on Kasey’s claim for false arrest for the charge of
resisting arrest.4
II.

Excessive Force Claim
The force used by officers to effect an arrest must be objectively reasonable under the

Fourth Amendment. Chelios, 520 F.3d at 689. To determine whether such force was

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The court need not determine whether McCulloh used excessive force in attempting to arrest
Kasey prior to his flight to resolve the issue of probable cause.
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Having found for McCulloh on this claim, the court will not address whether he would be
entitled to qualified immunity.

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reasonable, the court must engage in a “careful balanc[ing] of the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Id. (citations omitted) (internal quotation marks omitted). The
court considers the specific circumstances of the arrest, including “the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v.
Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Reasonableness is
evaluated “from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. “[S]ummary judgment is often inappropriate in excessive-force cases
because the evidence surrounding the officer’s use of force is often susceptible of different
interpretations.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010).
At issue is whether McCulloh’s use of force in shoving Kasey against his police vehicle
and deploying his taser three times was unreasonable. The parties dispute whether the initial
contact was a “push” or instead a “forceful shove” that also involved McCulloh lifting Kasey off
the ground. “[T]he right to make an arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at
396. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment.” Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973)); see also Smith v. City of Chicago, 242 F.3d 737, 744 (7th Cir. 2001) (officer’s
slamming of plaintiff against the hood of his car before handcuffing him was not excessive
where plaintiff appeared to be fleeing). Here, if Kasey’s version of events is credited,
McCulloh’s actions may be found unreasonable, as Kasey claims that McCulloh grabbed him

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unprovoked and threw him against the car. See Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir.
1996) (“[P]olice officers do not have the right to shove, push, or otherwise assault innocent
citizens without any provocation whatsoever.”). Alternatively, if it is true that Kasey ignored
McCulloh’s requests for him to stop in an apparent attempt to leave, the push or forceful shove
that accompanied McCulloh’s attempt to restrain Kasey may have been an allowable means of
effectuating an arrest. This credibility dispute cannot be resolved on summary judgment.
As to the taser use, McCulloh argues that it was reasonable as Kasey was fleeing and
continually resisted arrest, it was dark, and McCulloh did not know if Kasey had a weapon and
posed a risk to others. McCulloh claims that he deployed the taser three times because the first
deployment was unsuccessful and, after the second deployment, Kasey refused to move his arms
from under his body. Kasey again disputes McCulloh’s description of the tasering and argues
that the use of the taser was unreasonable in light of the minor violation at issue. Pursuant to
Kasey’s version of events, the first taser was deployed without warning, after which he lost
control of the right side of his body. He claims to have been facedown and defenseless when the
third taser was deployed.
McCulloh’s initial use of the taser was not unreasonable, as Kasey was clearly ignoring
McCulloh’s commands and fleeing from him. See Draper v. Reynolds, 369 F.3d 1270, 1278
(11th Cir. 2004) (“single use of the taser gun causing a one-time shocking” in order to arrest a
“hostile, belligerent, and uncooperative” individual was not excessive); Hodges v. Settingard,
No. 09-1211, 2011 WL 285604, at *6 (C.D. Ill. Jan. 26, 2011) (use of taser one time to prevent
plaintiff from fleeing the scene was not unreasonable). Whether the subsequent use of the taser
was excessive depends on which version of events is credited. “It is well established that a

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police officer may not continue to use force against a suspect who is subdued and complying
with the officer’s orders. But that principle depends critically on the fact that the suspect is
indeed subdued.” Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009) (citations omitted); see
also Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009) (“Quite simply, though the initial use
of force (a single Taser shock) may have been justified, the repeated tasering . . . was grossly
disproportionate to any threat posed and unreasonable under the circumstances.”). A jury could
reasonably conclude, believing Kasey, that the repeated tasering was excessive and
disproportionate to any threat posed. See Cyrus, 624 F.3d at 863. Because there is a genuine
issue of material fact as to whether Kasey was subdued after McCulloh deployed the taser once,
summary judgment will be denied on the excessive force claim.
Alternatively, McCulloh argues that he is entitled to qualified immunity because he did
not violate clearly established law in shoving Kasey or tasering him three times. Only if
McCulloh’s version of events is accepted would this be the case, however. It is clearly
established that an officer may not use excessive force in arresting an individual, see Holmes v.
Vill. of Hoffman Estates, 511 F.3d 673, 687 (7th Cir. 2007), and cannot continue to use force
when a suspect is subdued, see Johnson, 576 F.3d 658, 660. As the court takes the disputed facts
in the light most favorable to Kasey in deciding whether McCulloh is entitled to qualified
immunity, Nanda v. Moss, 412 F.3d 836, 841 (7th Cir. 2005), McCulloh cannot take advantage
of qualified immunity.
III.

Malicious Prosecution Claim
In order to establish malicious prosecution under Illinois law, a plaintiff must

demonstrate “(1) the commencement or continuance of an original criminal or civil judicial

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proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3)
the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages
resulting to the plaintiff.” Swick v. Liautaud, 662 N.E.2d 1238, 1242, 169 Ill. 2d 504, 215 Ill.
Dec. 98 (1996) (citations omitted) (internal quotation marks omitted). While no formal
proceeding was ever instituted, Kasey received supervision. This arrangement, while not
formally resulting in a finding of guilt, does not establish that a criminal proceeding terminated
in Kasey’s favor. Even where a prosecutor decides not to prosecute a case, the plaintiff must
show that the case was abandoned for reasons indicative of the plaintiff’s innocence. Ferguson
v. City of Chicago, 820 N.E.2d 455, 460, 213 Ill. 2d 94, 289 Ill. Dec. 679 (2004). Kasey has not
presented any evidence to make such a showing. In fact, it appears that diversion to supervision
was an approach employed by the state’s attorney’s office to deal with first-time juvenile
offenders. Without being able to show that the proceeding terminated in his favor, Kasey’s
malicious prosecution claim fails.
IV.

Indemnification Claim
The Village of Northfield seeks judgment on Kasey’s indemnification claim premised on

defendants’ contention that McCulloh is not liable for any of Kasey’s claims. As the court has
found that material issues of fact remain as to Kasey’s excessive force claim, summary judgment
on indemnification is not appropriate.

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CONCLUSION AND ORDER
For the foregoing reasons, defendants’ motion for summary judgment [#48] is granted in
part and denied in part. Judgment is entered for McCulloh on counts II and III of Kasey’s
amended complaint.
This case will be called for a status hearing on June 16, 2011 at 8:30 a.m. The parties are
directed to engage in a sincere effort to resolve this litigation and to report on these efforts at the
status hearing.

Dated: May 5, 2011

Enter: ___________________________________
JOAN HUMPHREY LEFKOW
United States District Judge

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