CHARLENE AMOS v. THE STATE OF ILLINOIS (2003)

OPINION

This claim is before the Court upon a recommendation from Commissioner LaGuina Clay-Clark following an evidentiary hearing.

Claimant is seeking $100,000.00 for assault, battery and property damage that occurred due to the alleged negligence of the Metropolitan Enforcement Group, a division of the Illinois State Police. While conducting a drug investigation on an upstairs unit of a residential building, the Metropolitan Enforcement Group forcibly entered Claimant's downstairs unit, damaged property and fatally shot Claimant's dog. On December 4, 1998 Claimant filed a complaint with the Court of Claims seeking compensation.

INTRODUCTION

An evidentiary trial was conducted before Commissioner LaGuina Clay-Clark on February 20, 2002. Testifying on behalf of the State were Officers Keith George and Nicholas Poulos. Claimant and Claimant's husband, Ricky Amos, testified on her behalf. In evidence were photographs of the front and back of Claimant's home, photographs of the enclosed front porch area, photographs of a bullet hole in the floor of the porch and ceiling of the basement, photographs of the kitchen floor and kitchen door, and photographs of Claimant after the incident. Also in evidence were spent casings from bullets and a lead slug, Claimant's medical bills, bills for the kitchen door, the sweatshirt Claimant was wearing at the time of the incident, the deposition of Officer George and the State's departmental report.

On or about December 4, 1996 Claimant was the owner of a two story residential building commonly known as 1541 Lincoln Street located in the city of North Chicago, Illinois. Claimant, her family and two pet dogs occupied the first floor unit. A tenant, who was the subject of a drug investigation conducted by the Metropolitan Enforcement Group (hereinafter MEG), a division of the Illinois State Police, occupied the upstairs or second floor unit. On December 4, 1996, MEG obtained a court authorized search warrant for the second floor residence. It is undisputed and verified by the search warrant itself, as well as from elicited testimony, that neither Claimant's first floor unit, nor anyone in her household was under investigation or the target of the search warrant. On December 4, 1996 at approximately 12:00 noon police officers arrived at the 1541 Lincoln Street property in order to execute the search warrant for second floor unit. An arrest of a male subject was subsequently effected for unlawful possession of cannabis, which had no connection or bearing on Claimant. However, after the arrest was made, MEG forcibly entered Claimant's first floor unit and fatally shot one of her dogs.

Claimant contends that the State was negligent in forcibly entering her home because the search warrant was for the second floor apartment unit and not for her unit. Claimant argues that Respondent used reckless conduct, unreasonable risk of harm to other people and excessive force. Claimant contends that MEG had already made its arrest and had no legal right, or reason to enter her home. But for the State's negligence in entering her home and shooting her dog, her pet would not have been killed. Claimant argues that Respondent committed an assault and battery upon her person. When the officer shot the dog, Claimant's body was so close to the dog's body that Claimant and the dog were as one. The gunshot was therefore an assault and battery upon the Claimant.

Respondent argues that the entry to Claimant's unit was done pursuant to a valid search warrant and therefore was not negligent. Respondent entered Claimant's home because the second floor apartment could be accessed only from a door in the rear of the building, which presented a confusing situation. Respondent states that the dogs were out of control and threatening. Respondent was justified in shooting the dog in self-defense and alleges that the officers actions were reasonable and that no excessive force was used.

FACTS

Claimant, a 40 year old manager for Goodwill Industries located off the Great Lakes Naval Base, testified that on December 4, 1996, she arrived home from work at approximately 12:15 p.m. At which time she released her pet dogs, Havoc a five year old Straf fordshire Terrier and Chaos, a six month old American Pitbull Terrier, out into the backyard. After about five minutes she brought the dogs back into her first floor unit. Claimant, while changing clothes, heard smashing and banging sounds in her kitchen. She ran into the kitchen and observed the backdoor being slightly pushed opened. Claimant was able to close and lock the door while screaming for help. Claimant testified that no one identified themselves as police officers at that time. She then ran into the bedroom, grabbed a cordless phone and ran for the front door. Claimant dialed 911 while running out of the house and onto an enclosed front porch. While on the enclosed front porch and talking to 911, Claimant opened the screen door which led directly to the outside and saw two men ascending the five steps that led up to the enclosed porch. They identified themselves as police officers, one of which was Officer George. Claimant testified that she informed 911 that the men at her door claimed to be police officers. 911 confirmed that they were.

George testified that when he arrived at the scene Claimant's back door had already been smashed. He observed Claimant standing in the enclosed front porch and talking on the telephone. George identified himself as a police officer, walked up the steps and entered the enclosed porch. George testified that he listened to Claimant scream on the phone for several minutes apparently mad that the police had done a search warrant on the residence. Evidence shows that, Officers Bell, Parisi and Poulos joined George on the enclosed porch. Officers George and Poulos testified that while in the enclosed front porch, they heard and observed through a window pane of the front interior door that leads directly into Claimant's residence, two large dogs barking, scratching and jumping at the door. George testified that, The dogs were on the other side making me nervous. Poulos testified that, I don't like any dogs beside mine. So, I asked her to go into the house and put the dogs away so we could speak. As Claimant opened the interior door in an attempt to put the dogs away, the dogs slipped passed her and ran out onto the enclosed porch. Claimant and Respondent have different versions of what happened next.

Claimant contends that even though the dogs got loose, she managed quickly to grab and hold both dogs up against her chest. She testified that she and both dogs were about three to four feet away from Officer George as he stood upon a radiator. George then shot one of the dogs, while still in her arms. The dog lunged up into her body and then ran into Claimant's house. Officer George contends that the dogs got loose and Claimant was able to grab one dog. The other dog got loose and backed him into a corner of the porch. He stood upon an object and the dog bit his left ankle. He and the dog were at least four feet away from Claimant and the other dog when he shot the dog out of fear for his safety. At which time, the dog let go of his ankle, turned and jumped through the screen of the porch door, whereupon Officer George heard another gun shot.

Pertinent testimony from Claimant on direct examination follows.

A. I grabbed both of them by the collars and Havoc backed up out of hers. That's when I jumped down and lunged on them and grabbed them both around the chest area.

Q. Where was Chaos at this time?

A. Chaos was right with me. Chaos was on my left-hand side; Havoc was on the right-hand side.

Q. Did either of your dogs bite Officer George?

A. No they did not.

Q. What's the closest that your dogs got to Officer George at any point in time?

A. At least three to four feet.

Q. When the dogs came out, you said you grabbed them by the collars; is that correct?

A. Correct.

Q. What kinds of collars or restraints did they have on them?

A. They had choke chains on, and Havoc had a red leather collar.

Q. Havoc, did you grab him with your left hand or right hand?

A. I grabbed her with my right hand. I grabbed Chaos with my left hand.

Q. Havoc you said backed out of the choke chain?

A. Backed out of the choke chain.

Q. Still had a collar on?

A. Correct.

Q. After she got out, where was she headed?

A. She was headed to the radiator where the officer was standing.

Q. How far away from the radiator were you at the time this happened?

A. About four feet.

Q. You jumped on the animal, you said?

A. I jumped on him.

Q. I'm going to show you what's been introduced as Exhibit 11 for identification. I'm not going to ask you to show us now, but can you tell me what's shown in Number 11?

A. I was kneeling down, just like I was, and I grabbed ahold of him so they wouldn't kill him.

Q. Did you say anything to the officer about him not killing your dogs?

A. Yes I did.

Q. What did you say?

A. I said, please don't kill my dogs, please don't kill my dogs, please don't kill my dogs. That's all I was saying.

Q. Did you say that before or after you lunged down over the dogs?

A. I said it as soon as she backed up out of her collar, because he pulled his gun out.

Q. I'm going to show you Number 12 for identification. Can you tell me what's in number 12?

A. Blood, scarred up knees.

Q. How did your knees get scarred up?

A. Because I was on my knees begging for our lives.

Q. These photographs were taken how long after the incident?

A. Within an hour.

Q. Did you do anything in that hour which would have skinned your knees other than jumping down on the carpet?

A. No.

Q. Now, when you jumped over the dog, can you describe where Havoc was in relationship to you? You were on your knees with your arms in front of you. Where was your dog?

A. Right underneath me, up against my chest, both of them.

Q. The back of the dog was up against you chest?

A. Yes.

Q. Where was the dog's head in relationship to your head?

A. Facing straight.

Q. How close was your face to the dog's face?

A. Close because I did everything I could to restrain him. So I was grabbing like a bear hug so I was literally on top of them to protect them.

Q. What happened next?

A. He shot.

Q. He being Officer George?

A. Yes.

Q. Did at anytime Havoc put her mouth around his left ankle?

A. No she didn't reach that far.

Q. Where was Officer George when he discharged his weapon?

A. On top of the radiator.

Q. How many feet away from you guys was he at that time?

A. Three to four feet.

Q. What happened as a result of your dog getting shot? Did his body move after he got shot?

A. She lunged up toward my face and jumped over my left shoulder.

Q. Did she make contact with you?

A. Yeah, and ran in the house.

Q. Did you see her go after anybody else?

A. No, she ran straight into the house.

Q. What happened to Chaos at that time?

A. Chaos ran. And I got up and ran behind Chaos and grabbed him by the collar, and took him into the back room and locked him up. And I was screaming for somebody to please save her, please save her, please somebody call help so they can save her.

Q. Did anybody call any help?

A. Yes, they did.

Q. What happened?

A. She was already dead, they said. But I don't know when her body left, because I didn't see nobody come and take her.

Q. So somebody took the dog?

A. Yes

Q. Did you ask for the return of the animal?

A. Yes, I did.

Q. Did they return the animal to you?

A. No, they didn't.

On direct examination, Officer George testified as follows:

Q. Did you ask for access to the first floor unit?

A. No.

Q. Did you ask her to put her dogs away?

A. Yes, I did.

Q. Why did you ask her to put her dogs away if you weren't going in the first floor unit?

A. I was trying to talk to Mrs. Amos, and the dogs were jumping at the door. I was afraid the dogs were going to come through the door.

Q. Is there any particular reason you didn't step off the porch?

A. She wouldn't come outside.

Q. Did you ask her to come outside?

A. She was not talking to us at that time. She was talking on the phone.

Q. The question is, did you ask her

A. No, I did not.

Q. ou need to let me finish the question before you answer. Okay? The question is, did you ask her to step off the porch and talk to her outside away from the dogs?

A. No.

Q. You were carrying a loaded .45; is that correct?

A. Yes.

Q. What happened after you asked -- or you got nervous about the dog, what happened next?

A. Mrs. Amos opened the door and kicked the dogs, and then let them out.

Q. It's your testimony that she voluntarily let them out?

A. She opened the door. They came out.

Q. How far did she open the door?

A. About a foot and a half, maybe two feet.

Q. Did she make any maneuver to go into the house?

A. Not that I saw.

Q. When you said she kicked the dogs, did she stand out on the porch and just kick them or did she try to get into the

A. She opened the door, kicked the dogs, told them to get back, and then opened the door more, and the dogs came out.

Q. What happened after the dogs came out?

A. She grabbed one of them. The other one came at me. I backed into the corner, up on top of this plastic table to the heat register. At which time the dog bit my ankle, and in fear of my ankle, I shot it.

Officer George also testified that he was wearing blue jeans and military-type boots that came up to his calf. The dog bite punctured his jeans, but did not puncture his boots or his skin. He testified that one foot, his right foot, was on the radiator, while the left ankle was in the dog's mouth. George then discharged his weapon while aiming for the dog's head. When asked if he was afraid he would shoot himself in the foot, George responded, Yes.

Officer Poulos, on direct testimony, stated that when the dogs got out they were very aggressive. Claimant was able to grab one dog, but not the other. Poulos testified that Officer George shot the dog when the dog backed him into a corner. Claimant then grabbed the dog, but the dog got loose and leapt towards the screen of the porch door and that is when Officer Parisi fired a second shot. Claimant grabbed the dog again and took both dogs into the home. When asked why there was no mention of this testimony in his incident report, Poulos responded, I believe I did a memo. I'm not certain. During cross-examination, when asked if he had a copy of the memo, Poulos answered, No, sir, I don't. Officers George and Poulos testified that neither Claimant, nor anyone associated with Claimant's home were the subjects of the search warrant. Both testified that they had not viewed the warrant themselves and were not aware that the search warrant was for unit two only. Officer Parisi did not appear for testimony.

Claimant's husband testified that while at work, he received a phone message that his wife was irate and wanted him home. Ricky Amos is and was employed at Abbot Laboratories, located on Sheridan Road in North Chicago and was approximately two blocks from their residence. He literally ran home and arrived within seven minutes after receiving the call. He observed police officers milling around in the front yard. He testified that the dog that had been shot was not there. Officers refused to tell him where the dog was. Claimant informed him that the dog had been taken. He asked several times for the dog's return, but his requests were not granted. Mr. Amos testified that he inspected the radiator area and saw no blood on or near the radiator. He observed a bullet hole in the floor of the porch about three and one-half to four feet away from the radiator. Blood was around that bullet hole. He saw no blood between the radiator and the bullet hole. He observed blood in front of a chair, splashes of blood behind the bullet hole, and blood on the porch floor and area rug. He testified that he found a lead slug embedded in the basement floor because the bullet ended up going through the dog, the porch floor and down into the basement. He found two bullet casings. One casing .45 in size was found on the floor of the porch and the other casing, nine millimeters in size, was on one of the outside steps leading up to the front porch. Mr. Amos stated that the plastic table in the porch area had a broken leg and was used for cosmetic purposes only. A fake plant, weighing less than one pound, was on the plastic table, but the small table could not support the weight of a grown man. Mr. Amos also testified that on the night of the incident, he was unable to calm his wife. He could not make her feel safe. For sometime after the incident she could not sleep and only talked about the incident. She was emotionally upset and cried constantly and still cries to this day on occasions. As a result of the incident she sought treatment from Dr. Plotnick, a mental health professional. Mr. Amos testified that the counseling calmed her enough to allow her to rest at night, but her anxiety lasted for two years. Today, she gets apprehensive upon hearing sirens. They have moved from their residence where the incident took place and do not travel back into North Chicago to avoid bad memories.

Claimant presented medical bills in the amount of $490.00 and bills for the door in the amount of $870.00.

ISSUES

The disputed issues in this case is whether the State was negligent when it entered Claimant's home; (2) whether the State used excessive force; and (3) whether an assault and battery was committed upon the Claimant when the State shot her dog.

LEGAL ANALYSIS

In order to recover against the State for negligence, the Claimant must prove by a preponderance of the evidence that the State was negligent, that the negligence was the proximate cause of Claimant's injuries and damages. Reed v. State (1999), 52 Ill. Ct. Cl. 134, 140. We find that the state was negligent.

Respondent argues that it entered Claimant's home upon a valid search warrant and therefore was not negligent. The search warrant was contained within the departmental reports which were compiled by the Illinois State Police and offered as prima facie evidence of the facts contained therein pursuant to Section 790.140 of the Rules of the Court of Claims (74 Ill. Adm. Code 790.140). Menard County Health Department v. State of Illinois (1989), 41 Ill. Ct. Cl. 200, 201. Respondent's contention that the entry was made upon a valid warrant is true only to the extent that the warrant was valid to the second floor unit, not the first floor. It gave the address subject to the search as 1541 Lincoln, #2, (emphasis added) North Chicago, Lake County, Illinois. It is undisputed that the warrant was for the second floor dwelling unit. However, because officers George and Poulos did not know that the warrant was for the second floor only, and had not seen the warrant, they made a mistake. It was negligence on the part of the State, to forcibly enter the home of Claimant who was peaceably and legally conducting herself in her home at a place and time where she legally had the right to be.

Respondent argues next that because the second floor could only be accessed from the back of the building, it created a confusing situation for the officers. Respondent argued that in performing their duties, they never know what type of situation they are walking into. We agree that police officers do not have an enviable job. Their duties are dangerous and sometimes life threatening. However, necessary and proper preparation is required from the State before executing a search warrant. Legal consequences can result from lack of preparation.

The second and pivotal issue in resolving this claim is whether or not the officers violated the standards on the use of excessive force once inside Claimant's residence. The Court finds that the State did used excessive force.

Claimant argues that the officer used excessive force upon her dog when he shot it because she was restraining both dogs in her arms. Office George argues that the dog had his ankle in his mouth and out of fear for his ankle he shot the dog in self-defense and therefore his actions were not excessive force. The reasonable man standard applies with respect to self-defense. A person may use only such force as a reasonable person, under the same circumstances, would regard necessary to his defense. Ogden v. Claycomb (1986) 52 Ill. 365; Winn v. Inman (1983, 3d Dist.) 119 Ill. App. 3d 839, 75 Ill. Dec, 351, 457 N.E.2d 141. In resolving this issue, the Court must consider the credibility among the witnesses. Jones v. State (1994), 46 Ill. Ct. Cl. 324.

We first examine Officer Poulos testimony. His testimony is very similar to that of George's. However, despite Claimant's Rule 237, Respondent failed to produce a copy of Poulos memo that could have corroborated his and George's story. Additionally, Poulos was not even sure if he in fact had ever written a memo concerning the dog shooting incident. The incident report that Poulos did submit made no mention of his highly detailed account of the shooting that he testified to during this proceeding. Additionally, counsel for Claimant elicited testimony from Poulos that Poulos had previous conversations with George and other officers concerning the pending lawsuit which gives rise to the argument that Poulos story could have been contrived.

Next, the Court notes the State's failure to produce Officer Parisi, a key witness, despite Claimant's Rule 237. Parisi's, incident report, stated that Officer George fired the first shot to the dog and that he, Parisi, fired the second shot as the dog jumped through the screen of the front porch. The case of McCarthy Brothers Co. and The Waldinger Co. v. State (1995), 15 Ill. Ct. Cl. 15, 37 (citing Tepper v. Camp (1949) 76 N.E.2d 490) established the missing witness rule. Failure of a party to produce evidence available to that party and which testimony could have been produced if that party's position was true, would give rise to presumption against the party. Parisi was within the control of the Respondent to produce at trial. Claimant's position and reasonably so, is that the presumption must be recognized that if Parisi had been called, his testimony would have been unfavorable to Respondent. Additionally, Claimant's husband testified that the screen in the door of the front porch was still intact after the incident, so the dog could not have jumped through the screen door as Parisi's report states.

Officer George had a noticeable number of inconsistencies in his account of the events and therefore the Court found his testimony incredible. First, during his deposition, when asked, Was your foot [the foot that the dog had in his mouth] still on the radiator at the time that you discharged the weapon? George answered, Yes. However, at trial he testified that his foot was not on the radiator. Secondly, in his departmental report, he wrote that he stood upon a plastic stand in order to escape the dog; but during trial, he testified that he stood upon a radiator. Claimant's husband testified that the plastic stand could not support the weight of a man because the legs were broken. George testified that due to an oversight in his departmental report, he failed to state that he stood upon the radiator and not the plastic stand. Third, on cross-examination, George testified that he had redness on his leg as a result of the dog bite. However, during his deposition, George was asked the following question: There wasn't any bruising on your skin or anything such as that? George answered, No. It was sore, but no bruising. In light of George's testimony that the dog's teeth punctured his blue jeans but did not puncture his military boots, it is doubtful that any mark would have been left upon his skin. However, this doubt could have been overcome by producing the jeans and boots. Respondent failed to do so despite Claimant's Rule 237 and George testified that he threw the jeans away and no longer had the boots. George's testimony that he shot down at the dog's head while the dog held his foot is not believable. To believe this would be to believe that George would risk shooting his own foot. Lastly, when asked to explain how the bullet hole could be three feet away from where he claimed he shot the dog, Officer George could give no plausible explanation.

When examining Claimant's testimony, we find it to be credible and consistent with the evidence. The photographs depicting her blood-scarred knees and bloodstained socks are consistent with her account of jumping down and scrabbling on the floor while holding onto her dogs. The sweatshirt that she wore at the time of the shooting, with bloodstains around the cuffs of each sleeve, is also consistent with her testimony of holding the dog around the chest area when it was shot. Additionally, the bullet hole made from George's firearms was located at least three feet away from the radiator. This evidence is also consistent with Claimant's account that she and the dogs were at least three feet away from Officer George as he stood upon the radiator and shot her dog. Additionally, Claimant's husband found no blood on or near the radiator, nor did he find blood on the floor between the radiator and the bullet hole. The photographs further substantiate Claimant's testimony as they depict blood on the floor, area rug and chair in the area where Claimant was kneeling with the dogs.

It is telling that the dog's body was never returned to Claimant despite repeated requests. An autopsy could have determined whether or not the dog was shot once, according to Claimant or shot twice, according to Respondent. Respondent had control of the dog's remains and could have produced this evidence, but chose not to do so. Again, the noted presumption is that the results of the autopsy would have been adverse to Respondent's position.

We find that the State used excessive force when it shot Claimant's dog. George did not act in self-defense. Claimant was restraining the dog in her arms three feet away from George. Therefore the use of his gun was not necessary to his defense at the moment he discharged it. George admitted that hearing the dogs behind the door was making him nervous. In his nervousness, he failed to act as a reasonable person under the circumstances, but rather panicked and overreacted.

The last issue is whether the officer committed an assault and battery upon the Claimant when it shot the dog. We find that he did. Assault is defined as an intentional, unlawful attempt to inflict corporal injury by force, or unlawful directed force, under circumstances that create a well-founded fear of imminent peril coupled with the apparent present ability to do so, if not prevented. Harrison v. Ely (1987) 120 Ill. 83, 11 N.E. 334, Parrish v. Donahue (1982, 3d Dist.) 110 Ill. App. 3d 1081, 66 Ill. Dec. 860, 443 N.E.2d 786. A battery is defined as the unauthorized and willful touching of a person. Gaskin v. Goldwasser (1988 4th Dist.) 166 Ill. App. 3d 996, 117 Ill. Dec. 734, 520 N.E.2d 1085, app den 121 Ill. 2d 569, 122 Ill. Dec. 437, 526 N.E.2d 830. An essential element of a battery is that it is either harmful or offensive. Restatement 2d, Torts/13. It is of fensive if it offends a reasonable sense of personal dignity. Restatement 2d, Torts/18. Claimant argues that because the Claimant and dog were so close, they were as one. Therefore, the shot was an assault and battery upon the Claimant.

It is of no question that the shot to the animal was an assault and battery upon the Claimant. When George pulled his gun, threatened to kill the dogs and aimed his .45 towards the dogs and Claimant, he created a well-founded fear of imminent peril for Claimant. She was on the floor with both dogs against her body when George fired his gun at the dog. When he shot the dog, he then and there committed a battery upon the Claimant.

CONCLUSION

Claimant has met her burden of proof. Under these circumstances, the liability of Respondent to Claimant is unquestionable. Even though the search warrant was issued for the second floor unit only, the officers demanded entry into Claimant's home and demanded that Claimant put her dogs away. In an attempt to comply with the officers demand, Claimant's dogs got loose. The State created this situation due to its own negligence in entering Claimant's home. Prior to entry into Claimant's home, an arrest had already been effected and cannabis confiscated from the upstairs unit. Respondent never explained why afterwards, the State smashed Claimant's kitchen door and gained entry into her home. The Court is left to conclude that a mistake was made by the State due to its own negligence. It used excessive force upon the dog and thereby committing an assault and battery upon the Claimant. The weight of the evidence supports a finding of Claimant's long term emotional pain and suffering as a result of the State's negligence. Claimant could not sleep and cried often. Certain scenes from the television conjure memories for Claimant. Claimant and her family moved from their home of seven years because she felt violated and unsafe. Despite treating with a medical professional for her emotional well being over a course of three months, Claimant's anxiety continued for sometime and recurs occasionally.

IT IS HEREBY ORDERED that Claimant is awarded $870.00 for the damaged kitchen door, $490.00 as compensation for her medical bills and $50,000.00 for the assault and battery and indignity suffered in full and complete satisfaction of claim.

RAUCCI, J.