David L. Backes v. Village of Peoria Heights, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3748
DAVID L. BACKES, et al.,
Plaintiffs-Appellants,
v.
VILLAGE OF PEORIA HEIGHTS,
ILLINOIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:07-cv-01283-JAG—John A. Gorman, Magistrate Judge.
ARGUED SEPTEMBER 22, 2011—DECIDED NOVEMBER 10, 2011
Before BAUER, MANION and KANNE, Circuit Judges.
BAUER, Circuit Judge. The plaintiffs-appellants, David
and Sara Backes, sued the Village of Peoria Heights and
its Chief of Police plus several other law enforcement
officials for civil rights violations under 42 U.S.C. § 1983.
They also included state common law claims in their
complaint. The defendants filed motions for summary
judgment, which the district court granted, dismissing
the suit. A timely appeal was filed. Reviewing the deci-

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2 No. 10-3748
sion de novo, we find no error on the part of the district
court and affirm.
I. BACKGROUND
David Backes (“Backes”) works as a correctional officer
in the Illinois Department of Corrections in Galesburg,
Illinois. A veteran of the Persian Gulf War, Backes
suffered from post-traumatic stress disorder for years. At
the time of the events underlying this appeal, he was
taking an anti-depressant drug, a powerful sleeping aid,
and several other medications. He also owned two shot-
guns, which he kept in his home.
On the evening of October 17, 2006, Backes left his home
in East Peoria, Illinois, after an argument with his wife,
Sara. He drove around the area, frequently calling Sara
and at least once suggesting to her that he might commit
suicide. At some point, Sara called the police. The police
dispatcher put out a report over several wires stating
that Backes was suicidal, was on medication, and had
access to weapons. Eventually, Backes ended up at the
Poplar Street Park in the Village of Peoria Heights, where
he parked his car, took one of the sleeping pills, and
fell asleep. Although by this time Backes had decided
against suicide, he never communicated this decision
to anyone prior to falling asleep in the car.
Officer William Switzer, a sergeant in the Peoria Heights
Police Department, was the first officer to respond and
arrived at the park around 2:00 a.m. on October 18. Under
the impression from the dispatch that Backes was poten-

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No. 10-3748 3
tially armed and suicidal, Switzer parked a safe distance
from Backes’s car, shined a spotlight into the driver’s side
window, and notified dispatch of his arrival. Two more
officers then arrived: Officer Kevin Hale of the Peoria
Heights Police Department and Officer Paul Segroves of
the City of Peoria Police Department. The officers saw
that the driver’s side window was down and that Backes
was sitting nearly motionless in the seat; Switzer’s
report indicated some small movements at various times
over the course of about two hours of surveillance. The
officers tried to alert Backes to their presence and to
elicit some response. Although the police sought con-
firmation through Sara about whether Backes actu-
ally had firearms in his possession, the fact that his two
shotguns remained in his home never reached Switzer
in the park.
After two hours with no response from Backes, Switzer
called Dustin Sutton, Chief of Police of the Village of
Peoria Heights. Switzer gave Chief Sutton his opinion
of the situation: namely, that Backes posed a potential
threat not only to himself but also to those around him.
Chief Sutton decided to contact the Central Illinois Emer-
gency Response Team (“CIERT”), a specialized team
made up of members of several different law enforce-
ment agencies and led by a member of the Peoria County
Sheriff’s Office.
Lieutenants Hartwig and Pierson, two officers of
CIERT, arrived at Poplar Street Park, and Chief Sutton
arrived around the same time. They were brought up to
speed by the officers on the scene.

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4 No. 10-3748
The appellants do not argue that summary judgment in 1
favor of Officer Switzer was in error. Their arguments deal
solely with the liability of Chief Sutton and the Village of
Peoria Heights. Therefore, we review the district court’s grant
of summary judgment as to those two defendants only.
Pierson, the commanding CIERT officer, made the
decision to call in a full CIERT squad for support. He and
Hartwig then formulated a plan, and CIERT executed it.
A CIERT armored vehicle was moved into position,
spike strips were put behind the parked car, and Lieuten-
ant Gaa of CIERT shot “pepper balls” into the car while
Switzer, who happened to be a member of CIERT, stood
by and provided cover. The CIERT personnel then re-
moved Backes from the car; immediately afterward, an
ambulance waiting nearby carried Backes to the hospital.
As a result of the CIERT operation, Backes claims that
his depression and post-traumatic stress disorder wors-
ened. He and his wife filed suit under 42 U.S.C. § 1983
claiming excessive force on the part of the police; they
also brought state law claims for battery, false arrest,
and willful and wanton misconduct by the officers.
II. DISCUSSION
The district court granted summary judgment in
favor of Chief Sutton, the Village of Peoria Heights, and
Officer Switzer, finding no genuine issue of material1
fact that might entitle Backes to relief. We review the
grant of summary judgment de novo. Parkey v. Sample, 623

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No. 10-3748 5
F.3d 1163, 1165 (7th Cir. 2010). We construe all facts in
the non-moving party’s favor. The appellants now argue
that the district court erred in dismissing the § 1983
claim against Chief Sutton and in dismissing the state
law claim for battery both against Chief Sutton
and the Village of Peoria Heights. We consider each
argument in turn.
A. The § 1983 Claim for Excessive Force and Supervi-
sory Liability
Section 1983 suits brought against police for use of
excessive force are typically analyzed under the
Fourth Amendment. In this case, we need not reach a
Fourth Amendment analysis. The district court granted
judgment in the appellees’ favor based on the well-estab-
lished principle of law that a defendant must have
been “personally responsible” for the deprivation of the
right at the root of a § 1983 claim for that claim to suc-
ceed. See Chavez v. Illinois State Police, 251 F.3d 612,
651 (7th Cir. 2001) (quoting Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995)). If Chief Sutton was not per-
sonally responsible for the conduct at issue in this case,
the § 1983 claim against him must fail.
The law recognizes, however, that a defendant need not
“participate[] directly in the deprivation” for liability to
follow under § 1983. Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001). Indeed, a supervisor may still be
personally liable for the acts of his subordinates if he
“approves of the conduct and the basis for it.” Chavez,
251 F.3d at 651 (citations omitted). “[S]upervisors must

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6 No. 10-3748
know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye for fear of what they
might see. They must in other words act either
knowingly or with deliberate, reckless indifference.” Id.
(quoting Jones v. City of Chicago, 856 F.2d 985, 992-93
(7th Cir. 1988)).
Here, the conduct at the root of the claim was carried
out by members of the inter-departmental emergency
response team, CIERT. The most senior CIERT officer on
the scene was Lieutenant Pierson, who was also a
deputy in the Peoria County Sheriff’s Office. The other
CIERT supervisor on the scene, Lieutenant Hartwig, was
also a member of the county police. Hartwig and Pierson
were the officers who formulated the plan to remove
Backes from his car. When they implemented that
plan, there is no evidence that Chief Sutton played any
part in it whatsoever. In short, Chief Sutton was not
personally involved in the operation in a way that
would lead to liability under § 1983.
The appellants argue, however, that Chief Sutton
should be liable as a supervisor for the conduct of
CIERT because he “facilitate[d] it, approve[d] it,
condone[d] it, or turn[ed] a blind eye.” Chavez, 251
F.3d at 651. But there is no evidence in the record
that Chief Sutton supervised CIERT in any way. In
fact, Chief Sutton was not even a member of CIERT.
As the Chief of Police for the Village of Peoria Heights,
he belonged to a completely different governmental
entity than Lieutenant Pierson, the commander on the
scene for CIERT and a county deputy sheriff.

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No. 10-3748 7
At best, the appellants can point to evidence that
Chief Sutton was consulted when CIERT members for-
mulated their plan, that he gave the CIERT team a
recommendation on how to proceed, and that he
ultimately agreed with the chosen course of action. But
even these facts do nothing to connect Chief Sutton to
CIERT in any supervisory capacity. If he condoned the
plan, it was not as a supervisor but as a mere con-
sultant from a completely separate governmental de-
partment. Once CIERT made the decision on how to
respond, it executed its plan without any input or in-
volvement from Chief Sutton.
The appellants rely heavily on Hampton v. Hanrahan,
600 F.2d 600 (7th Cir. 1979) rev’d in part, 446 U.S. 754
(1980). That case simply reaffirmed the holding of
Schnell v. City of Chicago that supervisory personnel may
be liable under § 1983 when they “have notice of the
unconstitutional conduct of their subordinates and fail
to prevent a recurrence of such misconduct.” Schnell v.
City of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969); see
also Hampton, 600 F.2d at 626-27. In Hampton, members
of the state’s attorney’s office played an integral role in
planning a police raid that resulted in a civil rights
claim. Hampton, 600 F.2d at 605-07. The attorneys super-
vised the raid in detail by drafting the warrant,
selecting the members of the team, selecting the weap-
ons that would be used, and deciding on the time of the
raid, among other things. Id. at 612.
Hampton is distinguishable based on the clear supervi-
sory role of the state’s attorney’s office in that case. The
attorneys had the authority to plan and execute the raid

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8 No. 10-3748
themselves, and they exercised that authority, even
some who were not personally present at the raid. Here,
Chief Sutton could have chosen to handle the situation
with his own team of Village of Peoria Heights police
officers, but instead he deferred to a specialized emer-
gency response team by calling in CIERT. And again,
the appellants point to no evidence that would indicate
a supervisory position of Chief Sutton over CIERT, or
of the Village of Peoria Heights Police Department over
the Peoria County Sheriff’s Office.
The appellants also rely on an Illinois statute for the
proposition that Chief Sutton is open to supervisory
liability based on the CIERT team’s actions. The portion
of the statute that they cite reads as follows: “[T]he
mayor of any municipality in the district, and the chiefs
of police therein, shall use the police forces under
their control anywhere in the district.” 65 ILCS 5/7-4-8.
This statute merely outlines the basic jurisdiction of city
police and does not describe the authority of special
task forces or address potential conflicts of jurisdiction
between different police departments. In short, no plain
reading of this statute would allow us to find that
Chief Sutton, as a matter of state statutory law, can
exercise supervisory authority over any other law en-
forcement agency that happens to be within the Village
of Peoria Heights. The appellants’ reliance on this statute
is misplaced.
B. State Law Claims
The appellants also argue that the district court erred
in granting the appellees’ motion for summary judgment

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No. 10-3748 9
on the state law claim for battery against Chief Sutton
and the Village of Peoria Heights. Battery is defined
under Illinois law as follows: “A person commits battery
if he or she knowingly without legal justification by any
means (1) causes bodily harm to an individual or
(2) makes physical contact of an insulting or provoking
nature with an individual.” 720 ILCS 5/12-3. We agree
with the district court that any harm suffered by Backes
cannot be attributable to Chief Sutton because, as we
have already noted, Chief Sutton did not take part in the
CIERT operation. And because Chief Sutton is not liable
for battery under Illinois law, the Village of Peoria
Heights is also free from liability for battery. The state’s
Tort Immunity Act mandates that “[a] local public entity
is not liable for an injury resulting from an act or
omission of its employee where the employee is not
liable.” 745 ILCS 10/2-109. The district court properly
granted the motion for summary judgment in the ap-
pellees’ favor on this issue.
III. CONCLUSION
We AFFIRM summary judgment in favor of the
defendants-appellees on both the § 1983 claim for exces-
sive force and the state law claim for battery.
11-10-11

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