CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is denied.

IT IS SO ORDERED.

Lscel—
John W. Darrah, Judge
United)States District Court

Date: . pisfae ZOOS

-13-



Plaintiff testified that he was walking past Daley when Daley asked him to stop and grab}
his arm. (Def.’s 56.1 § 19.) However, Daley testified that he told Plaintiff to stop, but Plaiy
continued to walk away. (Def.’s 56.1 438.) Daley testified that, because Plaintiff continued to
away, he grabbed Plaintiff by the belt. (Def.’s 56.1 ] 42.) Daley testified that Plaintiff resis
flailing his arms, pulling away, and dragging Daley toward the parking lot. (Def.’s 56.1 4 43.)

Daley wanted to question Plaintiff about where Plaintiff was going and what was going
inside the bar. (Def.’s 56.1 $40.) Daley believed that Plaintiffmay have committed a crime by bi
on the premises of a bar after hours. (Def.’s 56.1 41.) Daley had no plans to arrest Plaintiff at
time. (Def.’s 56.1 941.)

The parties agree that Plaintiff stopped, and Daley had Plaintiff put his hands against the
while he frisked Plaintiff. (Def.’s 56.1 20; Pl.’s 56.1 34.) Plaintiff testified that while D.
frisked him, Daley used profane language. (Def.’s 56.1 J 21.) When the frisk was over, Plaiy
assumed he was free to leave and took a few steps away toward the parking lot. (Def.’s 56.1 §
While Daley did not tell Plaintiff that Plaintiff was free to leave, Daley also did not tell Plaintiff,
he was under arrest. (Def.’s 56.1 | 22; Pl.’s 56.1926.) Daley testified that Plaintiff was bellige:

and resisted Daley’s attempts to detain or handcuff him by flailing his arms, pulling away ff

Daley, and swinging his fists at Daley’s head and face. (Def.’s 56.1 {1 43, 45, 46.) When Plaiyti

began walking away, Daley then tackled Plaintiff and handcuffed him on the ground. (Def.’s 46.

123.)

Wacker testified that he saw Daley frisk Plaintiff against the wall. (Def.’s 56.1 66.)

bed

tiff

on
ling

hat

all
ley
tiff
2.)
hat

ent

fhe

next thing Wacker saw was Plaintiff walking toward the front of the building when Daley tackled

Plaintiff from behind and handcuffed him. (Def.’s 56.1 {{[ 67, 68.) Wacker testified that he

4.

aw



performance by one known to the person to be a peace officer .. . of any authorized act withij
official capacity.” 720 Ill. Comp. Stat 5/31-1(a) (2002). Resisting a peace officer requires “

physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or dela

performance of the officer’s duties, such as going limp, forcefully resisting arrest or physically affine

a third party avoid arrest.” People v. Raby, 40 Ill. 2d 392, 399 (1968). An act of physical resist
is necessary; silence “in the face of requests for identifying information, or even supplying
information, is not enough to constitute obstruction.” Williams, 269 F.3d at 782.

A person commits battery when he or she intentionally or knowingly, without
justification and by any means, causes bodily harm to an individual or makes physical contact
insulting or provoking nature. 720 Il!. Comp. Stat. 5/12-3 (2002).

In the instant case, there is a factual dispute as to whether Plaintiff engaged in the ph
conduct, to which Daley testified, in response to Daley’s performance of an authorized act, the a
for battery, and whether Plaintiff had committed or was committing the crime of battery.
criminal complaint states that Plaintiff committed a battery by pushing Daley away from the
and that this physical contact was of an insulting nature.

Daley testified that Plaintiff pushed him upon exiting the Little Brown Jug and that,

he attempted to stop Plaintiff for questioning, Plaintiff continued walking away. Daley also testi

p his
lome

the

ance

false

legal

sical
prest
The

joor

hen

fied,

however, that, at that time, he had no intention of arresting Plaintiff for any crime. Daley futher

testified that, after grabbing Plaintiff's belt, he was able to stop Plaintiff and frisk him but that,

{fer

the frisk was over, Plaintiff immediately began walking away. When Daley tried to stop Plaintiff,

Plaintiff became belligerent, trying to swing his fists at Daley’s head and face.

Plaintiff, on the other hand, testified that he never pushed Daley into the wall but, at

-9-

ost,



arrest Plaintiff. The criminal complaints charge Plaintiff with battery and resisting a peace offiter.
The complaint for battery states that Plaintiff, “without legal justification, knowingly made phys|cal
contact of an insulting nature with Officer J. Daley by pushing officer [sic] Daley away from|the
doorway of the Little Brown Jug Tavern.” (P1.’s 56.1 Ex. B.) The complaint for resisting a peace
officer states that Plaintiff:

knowingly obstructed the performance of J. Daley of an authorized act within his

official capacity, being the arrest of [Plaintiff] for battery, knowing J. Daley to be a

peace officer engaged in the execution of his official duties, in that he pushed[,]

kicked, attempted to hit and bite J. Daley and refused to be handcuffed in an effort

to defeat the arrest.
(PI.’s 56.1 Ex. B.)

The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amdnd.
IV. Warrantless arrests in public places are permitted under the Fourth Amendment if the arresting
officer has probable cause. Sparing v. Village of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001)
(citing United States v. Watson, 423 U.S. 411, 417-24 (1976)). Probable cause for an arrest exists
if the officer “‘reasonably believe[s], in light of the facts and circumstances within [the officer’s]
knowledge at the time of the arrest, that the suspect had committed or was committing an offensb.””
United States, v. Carrillo, 269 F.3d 761, 766 (7th Cir. 2001) (quoting United States v. Hayes, 236
F.3d 891, 894 (7th Cir. 2001)). Police officers may draw reasonable inferences based on their

training and experiences in determining whether suspicious circumstances rise to the leve} of

Daley would only have to look at a clock to determine whether it was after closing time (4:00
a.m.).

Also, Plaintiff was not arrested for allegedly evading Daley’s attempts to question him
As noted in this opinion, the criminal complaints filed against Plaintiff charge him with resisting
arrest for the offense of battery and the offense of battery. Therefore, this Court’s inquiry willbe
focused on the events and legality of the arrest and not the purported Terry stop.

6-



Plaintiff struggling with Daley but did not see Plaintiff bite Daley. (Def.’s 56.1 ] 69.)
Daley had hit his panic button because he feared for his safety. (Def.’s 56.151.) The ¢hief
arrived with several other squad cars from Calumet City. (Def.’s 56.1 § 52.) Another officer
transported Plaintiff to the Burnham Police Department, where he was held in a cell until the hext
day when he was released on bond. (Def.’s 56.1 § 26.)
Plaintiff sustained massive trauma to his right arm, severe sprain to the right wrist, bruises
on his leg and knee, a broken capillary in his eye, a twisted knee, pain to his left ribs, numefous
abrasions, torn clothing, and was diagnosed with bursitis to his elbow a week later. (PI.’s 56.1 [85.)
Plaintiff was charged with battery for physical contact of an insulting nature and resigting
arrest for battery. (Def.’s 56.1 {| 70; Pl.’s 56.1 Ex. B.) Plaintiff was acquitted of the charges|in a
bench trial. (Def.’s 56.1 § 70.)
DISCUSSION

ed

Defendants argue that summary judgment is appropriate because (1) when Plaintiff resi
Daley’s attempts at interrogation and attempted to strike Daley, Daley had probable cause to alfrest

Plaintiff’; (2) qualified immunity bars Plaintiff's claims since Daley had arguable probable cauge to

‘Defendants devote much of their memorandum in support of their motion for summai
judgment to a discussion of the legality of Daley’s investigative stop pursuant to Terry v. Ohid,
392 U.S. 1 (1968). Daley testified that he needed to conduct a Terry stop because Plaintiff may
have committed a crime by being on the premises of the tavern after closing time. While the
statute clearly makes the sale of alcohol in a tavern after 4:00 a.m. a crime, it is not clear that 4
customer’s mere presence in a bar is a crime. The ordinance states that all patrons are to leavd
the premises at closing time but not that it is unlawful to remain on the premises after closing
time. In contrast, the ordinance expressly provides that “/i]t shall be unlawful for any person fo
whom the sale, gift or delivery of any alcoholic liquor is prohibited because of age to purchasq or
accept a gift of such alcoholic liquor or to have such alcoholic liquor in his possession.” (Def.
56.1 Ex. C at § 24(B) (emphasis added).) Moreover, even if, as Defendants argue, it is a crim¢ to
be on the premises of a bar after closing time, Defendant did not need to question Plaintiff to
determine whether a crime had been committed. Daley testified that he saw Plaintiff in the bat.

G

-5-



and circumstances within Daley’s knowledge at the time of the arrest and clearly established Jaw,
Plaintiff had committed or was committing an offense. See Hunter v. Bryant, 502 U.S. 224,|227
(1991) (quoting Anderson y. Creighton, 483 U.S. 635, 641 (1987)). A reasonable but mistdken
belief that probable cause exists is sufficient for entitlement to qualified immunity. Hunter, 502 .S.
at 227, In cases involving the issue of whether probable cause existed to support an arrest, “‘the tase
should not be permitted to go to trial if there is any reasonable basis to conclude that probable c4use
existed.” McDonnell v. Cournia, 990 F.2d 963, 968 (7th Cir. 1993) (quoting Cross v. City of Des
Moines, 965 F.2d 629, 632 (8th Cir. 1992)). The question of immunity is one for the court. Hudter,
502 U.S. at 228.

“Federal law asks only whether the officers had probable cause to believe that the predibate
offense, as the state has defined it, has been committed.” Williams v. Jaglowski, 269 F.3d 778, 782
(7th Cir. 2001) (citing Richardson v. Bonds, 860 F.2d 1427, 1432 n.4 (7th Cir. 1988)).

Plaintiff bears the burden of defeating an assertion of qualified immunity. Sparing, 166 ¥.3d
at 688 (citations omitted). “When presented with a defense of qualified immunity, courts must (1)
determine whether the plaintiff has alleged the deprivation of an actual constitutional right and (2)
if so, determine whether that right was clearly established at the time of the alleged violatiqn.”
Sparing, 266 F.3d at 688 (citations omitted). The right to be free from arrest without probable cduse
is well-settled.

However, as noted above, summary judgment on the issue of probable cause is inapproprfate
if there is room for a difference of opinion concerning the facts or the reasonable inferences tq be
drawn from them. See Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999).

A person resists a peace officer when he or she “knowingly resists or obstructs jthe

-8-



ilu Onder Foi.r26/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 01 C 4846 DATE 4/23/2002
CASE MIHALKO vs. DALEY
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bfiefly the nature
MOTION: of the motion being presented.)

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) i) Brief in support of motion due
(3) ao Answer brief to motion due. . Reply to answer brief due.
(4) im Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) Oo Trial[set for/re-set for] on at
(8) im) [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) ClGeneral Rule 21 CIFRCP41(a)(1)  FRCP41(a)(2).
ao) of [Other docket entry] Status hearing held. Jury trial set for September 16, 2002 is strickep and reset
to September 17, 2002 at 10:00 a.m. Enter Memorandum Opinion And Order. Defendants’ notion for
summary judgment is denied.
di) mf [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. number of notices,
Notices mailed by judge’s staff. APR 24 2002
Notified counsel by telephone, date docketed
a | Docketing to mail notices.
Mail AO 450 form. SIN “aden nile ‘2
Copy to judge/magistrate judge. 4

date mailed notice
‘courtroom

LG deputy's fies
initials i ——- -
Date/time received in
central Clerk's Office

mailing deputy initials



2d at 766. Under Illinois law, Plaintiff can establish malicious prosecution occurred if he can ghow

that (1) he was subjected to judicial proceedings for which no probable cause existed, (2}

the

proceedings were instituted or continued maliciously, (3) the proceedings terminated in his favor,

and (4) there was an injury. Abrams, 165 F. Supp. 2d at 766.

There are genuine issues of material fact from which a rational jury could conclude

that

Plaintiff had been maliciously prosecuted. As was noted above, there are genuine issues of material

fact as to whether probable cause existed. It is undisputed that Plaintiff was acquitted of battery

and

resisting a peace officer. There is a genuine issue of material fact as to whether Daley acted

improperly in filing criminal complaints for battery and resisting a peace officer against Plaintifi
in testifying as he did at Plaintiff's trial. Both Plaintiff and Wacker testified that Plaintiff did
push or shove Daley and that Plaintiff did not resist Daley’s attempts to handcuff him. Moreq
the undisputed facts establish that Plaintiff was arrested, held for seven hours, and was requird

defend himself in the criminal proceeding from conviction and a possible period of incarcera

and
not
ver,
id to

ion,

incurring attorney’s fees. Under Illinois law, “if the malicious prosecution is based on the institution

of criminal proceedings, no showing of special injury is required.” Voga v. Nelson, 115 Ill. App.

679, 682 (1983). Therefore, summary judgment is denied on Plaintiff's state law claim for malic
prosecution (Count IV).

There are genuine issues of material fact as to whether Plaintiff suffered a deprivatioy
liberty of a constitutional magnitude. Kies v. City of Aurora, 156 F. Supp. 2d 970, 979 (N.D

2001) (citation omitted). As was noted above, Plaintiff was arrested, detained for seven hours, tf

3d

jous

of

ied

for battery and resisting arrest and required to defend the charges. Therefore, summary judgment

is denied on Plaintiffs federal claim for malicious prosecution (Count I).

-ll-



brushed Daley with his clothing as he stepped past Daley. Wacker also testified that Plaintiff

brushed up against Daley when Plaintiff turned to avoid the officer as Plaintiff was exiting

the

tavern. Plaintiff also testified that he cooperated with Daley as soon as he was asked to $top.

Moreover, Plaintiff testified that he walked away from Daley because he thought the officer] was

through with him. Furthermore, the parties do not dispute that Daley was in uniform and did not

tell

Plaintiff that Plaintiff was free to leave or that Plaintiff was not free to leave. There is alsh no

dispute that Daley never told Plaintiff that he was under arrest prior to the alleged struggle.

The factual dispute as to the events of April 30, 2000 precludes summary judgment in fhvor

of Daley on qualified immunity grounds because the determination of whether a reasonable officer

in Daley’s position would have believed he had probable cause to arrest Plaintiff for battery dep

nds

on whether one believes his version of the events on that night or Plaintiff's. Furthermord, no

finding of arguable or actual probable cause could survive after adopting Plaintiff's version o:

facts. Abrams, 165 F. Supp. 2d at 766. Under Plaintiff's version of the facts, an unintenti

the

nal

brushing against someone with one’s clothing could not be considered to be an intentiond! or

knowingly insulting or provoking physical contact. Moreover, Plaintiff testified that he did not strike

Daley. Thus, there can be no finding of probable cause as a matter of law. There are issuds of

material fact as to whether Plaintiff committed a battery against Daley, resisted arrest, and whd

her

probable cause for the arrest existed; and, therefore, summary judgment is denied on Plaintiff's claim

for false arrest (Count I).
To prove a claim for malicious prosecution under § 1983, Plaintiff must prove that (1
satisfied the requirements of state law cause of action for malicious prosecution, (2) the malic

prosecution was committed by state actors, and (3) he was deprived of liberty. Abrams, 165 F. Si

-10-

he

ous

PP.



probable cause. Carrillo, 269 F.3d at 766 (citing United States v. Faison, 195 F.3d 890, 893 (7tH Cir.
1999)). Whether probable cause exists “turns on the information known to the officers af the
moment the arrest [was] made, not on subsequently received information.” Carrillo, 269 F.3d a4 766
(citing Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 2000)). The determination of the existence
of probable cause is based on the totality of the circumstances. Carrillo, 269 F.3d at 766-67 (citing
United States v. Scott, 19 F.3d 1238, 1242 (7th Cir. 1994)).
If facts sufficient to create probable cause are undisputed, probable cause is a
question of law. ... A dispute concerning some facts relevant to determining the
existence of probable cause does not preclude a finding of probable cause, so long
as the finding survives after adopting the plaintiffs version of disputed facts
supported by the record.
Abrams v. Walker, 165 F, Supp. 2d 762, 766 (N.D. Ill. 2001) (internal citations omitted). Probhble
cause is an absolute defense to § 1983 actions for malicious prosecution, false arrest, and false
imprisonment because there has been no constitutional deprivation. Myatt v. City of Chicago, 816
F. Supp. 1259, 1266 (N.D. Ill. 1992) (citing Schertz v. Waupaca County, 875 F.2d 578, 582 (7th{Cir.
1989)).
Qualified immunity shields police officers “‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.”” Sparing, 266 F.3d at 687 (quoting Wilson v. Layne, 526 U.S. 603, 609
(1999) (quoting Harlow y. Fitzgerald, 457 U.S. 800, 818 (1982))). The defense of qualified
immunity is not available to “‘the plainly incompetent or those who knowingly violate the law.”
Sparing, 266 F.3d at 688 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Daley is entitled to qualified immunity for purposes of summary judgment, and Plaintiffs

§ 1983 action against him barred, ifa reasonable officer could have believed that, in light of the facts

-7-



corporation duly incorporated under the laws of Illinois. (Def.’s 56.1 J 3.)

A local ordinance provides that “[i]t shall be unlawful for the holder of [certain license}

] to

sell or offer for sale at retail any alcoholic liquor after the hour of 4:00 o’clock [sic] a.m. and bdfore

the hour of 8:00 o’clock [sic] a.m. on any day.” (Def.’s 56.1 Ex. C, Burnham, IIl., Ordinance

Licensing and Regulating the Sale at Retail of Alcoholic Liquor in the Village of Burnham,

County, Illinois, No. 93-O-008 § 20(D) (Dec. 9, 1993).) The ordinance further provides that “

look

alll

patrons and customers shall leave the premises not later than the closing hours herein establishkd.”

(Def.’s 56.1 Ex. C § 20(J).)
On Saturday, April 29, 2000, Plaintiff was a patron at the Little Brown Jug Taver}
Burnham, Illinois. (Def.’s 56.148.) Plaintiff understood that the bars in Burnham must close at

a.m. and that police officers show up at the bars at that time to ensure they are closed. (Def.’s

qil)

n in

200

6.1

On April 30, 2000, Daley was on patrol. (Def.’s 56.1 431.) At closing time, Daley parked

his squad car directly in front of the Little Brown Jug and exited the car. (Def.’s 56.1 135.) E

in the morning on Sunday, April 30, 2000, at around 4:00 a.m., as Plaintiff was leaving the L

arly

ttle

Brown Jug, he saw Daley standing outside blocking the doorway. (Def.’s 56.1 7 17.) Plaintiff

sidestepped Daley. (Def.’s 56.1 4 17; Pl.’s 56.1 § 22.) Plaintiff does not believe that he

physical contact with Daley. (Def.’s 56.1 418; Pl.’s 56.1 99 19, 20.) However, Plaintiff believes
his clothing may have brushed against Daley. (Def.’s 56.1 { 18; Pl.’s 56.1 19, 20.) Joe Wad
a Little Brown Jug employee, testified that he saw Plaintiff brush up against Daley when Plain
tumed to avoid the officer. (Def.’s 56.1 | 63.) Daley testified that Plaintiff came flying out off

Little Brown Jug and shoved Daley to the wall, hitting Daley’s torso. (Def.’s 56.1 37.)

3+

lade

hat

er,

tiff

the



of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses
....” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, although the moving partyjon a
motion for summary judgment is responsible for demonstrating to the court why there is no genuine
issue of material fact, the non-moving party must go beyond the face of the pleadings, affidavits,
depositions, answers to interrogatories, and admissions on file to demonstrate, through spepific
evidence, that there remains a genuine issue of material fact and show that a rational jury cpuld
return a verdict in the non-moving party’s favor. Celotex, 477 U.S. at 322-27; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,}475
U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind. Hank
y. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary judgnient,
a court must view all inferences to be drawn from the facts in the light most favorable to the
opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185 F.3d (26,
731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475 US. at $86.
If the evidence is merely colorable or is not significantly probative or is no more than a scintilla,
summary judgment may be granted, Anderson, 477 U.S. at 249-250.

BACKGROUND

The undisputed facts taken from the parties’ Local Rule 56.1(a) & (b) statements of mat rial
facts (referred to herein as “PI.’s 56.1” and “Def.’s 56.1”) and exhibits are as follows.

Plaintiff is a forty-six-year-old United States citizen who resides in Illinois. (Def.’s S614
1.) Daley is a person under § 1983 and a police officer employed by the Village. (Def.’s 56.1 4 2.)

Daley became a police officer for the Village in 1980. (Def.’s 56.1] 29.) The Village is a municlpal

-2-



UNITED STATES DISTRICT COURT,
FOR THE NORTHER DISTRICT OF ILLINOIS,

EASTERN DIVISION

)
HARRY R. MIHALKO, )
)

Plaintiff, ) Case No. 01 C 4846
)

v. ) The Honorable John W. Darra

)
BURNHAM POLICE OFFICER )
J. DALEY, STAR #101; and the )
VILLAGE OF BURNHAM, )
)
Defendants. )
)

MEMORANDUM OPINION AND ORDER

Plaintiff, Harry R. Mihalko (‘Plaintiff’), filed a five-count complaint against Defend:
Burnham Police Officer John Daley (“Daley”) and the Village of Burnham (“the Villa:
(collectively “Defendants”), alleging false arrest, detention, malicious prosecution, and us|
excessive force in violation of 42 U.S.C. § 1983 (2002) by Daley; a state law claim for malic’
prosecution against Daley; and a state law claim against the Village under 745 Ill. Comp. Stat.
102 (2002). Defendants move, pursuant to Federal Rule of Civil Procedure 56, for sumn}
judgment.

For the reasons that follow, Defendants’ Motion for Summary Judgment is denied.

LEGAL STANDARD

Summary judgment is appropriate when there remains no genuine issue of material fact|

the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins.

v, Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). “One of the principal purp.

-1-

ints,

ze”)
of

ous

land
Co.

SES



Finally, summary judgment is inappropriate on Plaintiff's excessive force claim under §
1983. The right to make an arrest involves the right to use some degree of physical coercidn or
threat of physical coercion to effect it. Terry, 392 U.S. at 22-27. However, the force used to effect
an arrest must be objectively reasonable under the totality of the circumstances confronting the
officer. Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 592 (7th Cir. 1997). In determi ining
the reasonableness of the force used, the following factors are considered: (1) the severity of the
crime, (2) whether the suspect poses an immediate threat to the safety of the officers or others] and
(3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Graham
vy. Connor, 490 U.S. 386, 396 (1989).

Here, there are issues of material fact as to whether Daley’s use of force was objectively
reasonable in light of the circumstances confronting him. Plaintiffand Daley have two very diff@rent
versions of the events of April 30, 2000. The reasonableness of Daley’s use of force turn} on
whether Plaintiff was violently struggling with Daley. There is a factual dispute as to whether
Plaintiff attempted to kick, bite, push and hit Daley. Therefore, summary judgment on Plaintlff’s
claim for excessive force (Count II) is denied.

Count V? states a claim against the Village under 745 III. Comp. Stat. 10/9-102 (20)2).
Section 9-102 provides that “[a] local public entity is empowered and directed to pay any|tort
judgment or settlement for compensatory damages for which it or an employee while acting within
the scope of his employment is liable in the manner provided in this Article.” In light of] the

determinations above, summary judgment is denied on Count V of the complaint.

"In the complaint, this count is also styled “Count IV”; but the Court considers this a
typographical error and will refer to this count as “Count V”.

-12-