Klein v. Ryan

Decision Date16 May 1988
Docket NumberNo. 87-2554,87-2554
Citation847 F.2d 368
PartiesWilliam J. KLEIN, Plaintiff-Appellant, v. Lawrence RYAN and Frank Lombardo, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Robert M. Hodge, Chicago, Ill., for plaintiff-appellant.

John B. Murphey, Rosenthal, Murphey, Coblentz & Janega, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, WOOD, Jr., Circuit Judge, and ESCHBACH, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff Klein brought this action against defendants Ryan and Lombardo under 42 U.S.C. Sec. 1983. Klein claims that the defendants violated his fourth and fourteenth amendment rights when they shot Klein as he was fleeing after committing a burglary. The district court granted the defendants' motion for summary judgment based upon their affirmative defense of qualified immunity. We affirm.


In April 1983, the owner of Family Pride Laundromat, located at 495 Roosevelt Road, Glen Ellyn, Illinois, complained to the Glen Ellyn Police Department that someone was taking money from the laundromat. Through the aid of photographic surveillance, the police determined that the man breaking into the laundromat was plaintiff William Klein. As part of their investigation, the Glen Ellyn police periodically placed the laundromat under surveillance.

Defendant Lawrence Ryan, a police officer with the Village of Glen Ellyn, participated in the laundromat investigation. During the course of his investigation, and prior to May 12, 1983, Ryan had been advised by a police officer in West Chicago that on an earlier occasion when Klein had been arrested in that city, he had been carrying a gun. Ryan had attempted to locate Klein from an address that Klein had given on previous arrests in the Village of Mount Prospect, but the address was fictitious.

Ryan and defendant Frank Lombardo, an auxiliary police officer with the Glen Ellyn Police Department, were assigned to the evening shift on May 12, 1983. At the beginning of that shift, the shift commander briefed the officers on the proposed stakeout of Family Pride Laundromat. In the course of the briefing, the shift commander told the officers of a prior incident where Klein had attempted to run someone over with an automobile.

Around 11:00 p.m. that evening, Ryan and his partner, Mark Tobias, checked on the laundromat and found the back door propped open with a rock. They closed the door and drove east on Roosevelt Road. As the policemen were driving away from the laundromat, they observed Klein a few feet away in another vehicle. Ryan recognized Klein from the surveillance photos taken at the laundromat in April.

Ryan and Tobias parked across the street south of the laundromat. Klein parked his car in the parking lot south of the laundromat, with his car facing west. Ryan observed Klein walk along the west side of the laundromat to the front (north) door, carrying a container. Klein opened the front door and entered the laundromat. After Ryan observed Klein remove coin boxes from the dryers, Ryan radioed for assistance.

While Klein was still inside, Ryan walked to the west wall of the laundromat and watched Klein through a window. Ryan did not bring his police radio with him.

In response to Ryan's request for assistance, Lombardo was assigned to go to the front entrance of the laundromat, in accordance with the original plan that the briefing officer had outlined. En route to the laundromat, Lombardo learned that Klein was parked in the rear of the building, necessitating a change in the plan. Upon arriving at the laundromat, Lombardo left his squad car and positioned himself behind a dumpster located in the rear parking lot of Arby's, a restaurant directly east of Family Pride Laundromat. Lombardo was armed with a handgun and a shotgun.

From his vantage point along the west side of the laundromat, Ryan observed Klein exit the building through the south door. When Ryan saw that there was no movement or action by other officers, Ryan claims that he shouted to Klein by name, identified himself as a police officer, and told Klein to halt. Lombardo also claims that he heard someone, whom he believed to be Ryan, identify himself as a police officer and order Klein to halt.

As he left the building, Klein was positioned between Ryan (to the west) and Lombardo (to the east). Klein claims that he had walked south about twenty feet toward his car when he heard someone shout, "What were you doing in the laundromat for a few minutes? We want to talk to you." Klein turned and saw a man in plain clothes pointing a gun at him. 1 Klein became scared and ran toward his car, dropping a plastic bucket containing the stolen coins. While he was running, Klein claims that he heard two shots, 2 but he was not hit. In his attempt to get away, Klein cut his wheels hard and backed up in a northerly direction, then made a hard left, heading his vehicle past Arby's, toward the east exit of the parking lot. As Klein was headed out of the parking lot, he heard some gunshots, mostly shotgun blasts, and felt some stings, but continued on to the street.

Lombardo asserts that after he heard someone shout for Klein to halt, he saw Klein running toward his car, which was approximately thirty to fifty feet from Lombardo's position. Lombardo moved out from behind the dumpster in the direction of Klein's car. As he approached Klein's car, he claims that it was "coming at me in reverse, attempting to run me down, and I was able to move out of the way to the south." Ryan also saw the car back up toward Lombardo, and Lombardo move out of the car's path.

After Lombardo evaded the car, Lombardo saw the car head east out of the parking lot. Lombardo then fired at least two rounds from his shotgun. Lombardo claims that he was aiming at Klein's rear right tire. Despite these shots, Klein continued out of the parking lot at a high rate of speed. Lombardo claims that he noticed that there were no police vehicles positioned to prevent Klein's escape from the east exit of the parking lot. Lombardo then fired another round at the rear of the vehicle.

As Klein was exiting the parking lot, Ryan also fired three shots with a handgun, allegedly aiming at Klein's right rear tire. None of Lombardo's or Ryan's shots had any effect on the tire, although the rear window was shot out. After Klein drove out of the parking lot, a number of police vehicles began to pursue him. After driving about five or six blocks, Klein abandoned his car and fled on foot, eluding capture.

Although the Glen Ellyn police were unsure whether Klein had been injured during his escape, Tobias alerted area hospitals to be on the lookout for a man fitting Klein's description with a gunshot wound. On May 15, 1983, Ryan received a call from St. Anne's Hospital in Northlake, Illinois, informing him that a patient fitting Klein's description with a gunshot wound was at the hospital. Klein had checked into the hospital under the alias of Michael Telleen, claiming that he had been injured during a fight in a bar.

Klein subsequently pleaded guilty to the charge of burglary and was sentenced to four years imprisonment. After being released from the penitentiary, Klein developed seizures as a result of his head wound. Klein then filed an action under 42 U.S.C. Sec. 1983, alleging that Ryan and Lombardo violated his fourth and fourteenth amendment rights when they shot him as he was fleeing from the scene of the burglary. The district court granted summary judgment for the defendants on the basis of qualified immunity. Klein appeals the district court's ruling. We have jurisdiction over this appeal under 28 U.S.C. Sec. 1291.


The doctrine of qualified immunity shields government officials performing discretionary functions from liability for civil damages. To overcome the defense of qualified immunity, the plaintiff must show that the officials violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

A court should grant summary judgment when 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); Reardon v. Wroan, 811 F.2d 1025, 1027 (7th Cir.1987). As we have explained, "appellate review of a denial of summary judgment on the issue of qualified immunity is limited to the legal question of whether the law was well established at the time of the conduct." Wade v. Hegner, 804 F.2d 67, 70 (7th Cir.1986); see Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). "[I]f there are issues of disputed fact upon which the question of immunity turns, or if it is clear that the defendant's conduct did violate clearly established norms, the case must proceed to trial." Green v. Carlson, 826 F.2d 647, 652 (7th Cir.1987).

Klein has the burden of demonstrating that the defendants violated a constitutional right that was clearly established on May 12, 1983. Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 3020-21, 82 L.Ed.2d 139 (1984); Abel v. Miller, 824 F.2d 1522, 1534 (7th Cir.1987). For a right to be "clearly established,"

[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.

Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citation omitted). As this circuit has held, "[t]he right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful." Azeez v. Fairman, 795 F.2d...

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