McHenry County Blog

Minute orders by Federal Judge Frederick Kapala, sitting in Rockford, announce a so-far undisclosed settlement of a case brought by 61-year old Peter Matwijiw against the McHenry County Sheriff’s Department.

Matwijiw was injured on July 3, 2009, by Deputy Robert Chamberlain and, then, arrested for resisting arrest and obstruction of justice.

On those charges, represented by a Public Defender, Matwijiw was found not guilty.

While the Sheriff’s Department sought dismissal of the case, Judge Kapala denied that request on May 4,2012.

On October 22nd, Judge Kapala entered the following order:

“MINUTE entry before Honorable P. Michael Mahoney: Settlement conference held on 10/22/2012.

“Counsel report cause settled as stated in open court.

“Court retains jurisdiction to enforce settlement.

“Parties to file stipulation to dismiss by 1/2/13.”

Then on October 23rd this order was entered:

“MINUTE entry before Honorable Frederick J. Kapala:”This case has been reported settled.

“The parties are directed to file a stipulation with the court by 1/2/2013, and to send a paper courtesy copy to the court.

“If the parties fail to file the stipulation and this court does not extend the period of time for filing the stipulation, the Clerks Office is directed to enter an order of dismissal with prejudice and judgment.

“Each party shall bear its own costs, unless otherwise provided in the settlement documents.

“Due to the settlement of this case, any pending motions are now moot and all court dates are canceled.

Asked to comment about the case, attorney Louis Meyer, who successfully represented the Pavlins in their illegal search case against the Sheriff’s Department, wrote,

“The settlement will be made public in December, of course after elections and a new county board.

“My client was Peter Matwijiw.

“He alleged excessive force against deputy Chamberlain and malicious prosecution.

“Peter was found not guilty of resisting and obstruction of justice.

“His face and shoulder were injured during the false arrest and excessive force.

“The incident resulted from a lack of communication between a 61 year old man that only has 30% hearing in one ear and overzealous deputy.

“After the misunderstanding was cleared up, instead of apologizing for the mistake, Deputy Chamberlain arrested Peter and brought false charges against him in an attempt to cover up his misconduct, i.e. the false arrest and excessive force.

“In this case justice prevailed and Peter was found not guilty and was able to bring a civil suit to recover damages he sustained.

“Thankfully, the public defender beat the bogus charges.

“The current Sheriff will not admit when his deputies screw up and that reinforces them to continue their conduct.

“I don’t think the Sheriff has ever said one of “his boys” did anything wrong and he will spend to no end to defend them.

“It has started to cost him and the taxpayers.

“He is from the old school days of cover up and favors for friends, hire unqualified deputies because who they know, etc!”

Below you can see Judge Kapala’s summary of the case in his May 4, 2012, decision not to dismiss it:

“In the complaint, plaintiff alleges the following facts, which are taken as true for purposes of the motion to dismiss.

“On July 3, 2009, plaintiff was at his home in Woodstock, Illinois.

“At approximately 1:00 p.m., Chamberlain arrived at plaintiff’s home in response to a 911 call and spoke to plaintiff, who was outside in front of his home.

“Plaintiff asked Chamberlain why he was there, and Chamberlain told plaintiff that he was there to investigate a 911 call.

“Plaintiff told Chamberlain that nobody had called 911 and that it must be a mistake.

“Although unknown to plaintiff at the time, plaintiff’s sister had accidentally dialed 911.

“Chamberlain told plaintiff that there had been a 911 call and that he needed to check the home.

“Plaintiff told Chamberlain that he would check the home, and then he turned from Chamberlain and began walking towards his home.

“At that point, Chamberlain grabbed plaintiff from behind and slammed him into a car.

“Chamberlain also knocked plaintiff to the ground and slammed a knee into plaintiff’s back.

“Chamberlain then handcuffed plaintiff and began to twist and pull on the handcuffs causing plaintiff extreme pain.

“Plaintiff was subsequently transported to the McHenry County Jail and charged with obstructing a police officer and resisting a peace officer.

“After a two-day trial, plaintiff was found not guilty on both counts.”

Louis J. Meyer represented Mr.Matwijiw.

The Sheriff was represented by the McHenry County State’s Attorney’s Office.

A commenter asked why Dr. Jerome and Carla Pavlin’s Fourth Amendment case against the McHenry County Sheriff’s Department was filed in Federal Court, rather that State Court (since the same right is contained in the Illinois State Constitution).

I asked their attorney Louis Meyer and here’s his reply:

“You can file these claims in both State and Federal Court.

“The reason most people file constitutional claims in Federal Court under Section 1983, is that the prevailing party is entitled to their attorneys’ fees and costs.

“You do not get attorneys’ fees in state court claims.

“If you file a Federal Civil Rights claim in state court, the Defendants can remove it to Federal Court.

“If you file just a state claim, they cannot remove.”

The last sentence in Meyer’s explanation wasn’t clear to me so I requested amplification.  It is below:

“What that means is that if you file a lawsuit and only alleges state law claims v. federal claim, the case will remain in state court pending a few exceptions.

“On the other hand, if you file a lawsuit in state court and allege federal claims (state courts can hear these cases) such as Section 1983 False Arrest or Section 1983 Illegal search, the Defendants can remove the case to federal court. Section 1983 is the Federal Statue that allows civilians to bring lawsuits against State/government actors.”

McHenry County–or at least its insurance company or risk management agency–got off the hook for the $100,000 deductible in its policy.

That was more than eaten up by attorneys’ fees before a $300,000 settlement was agree upon.

That settlement came after Federal Judge Frederick Kapala ruled that Deputies in the McHenry County Sheriff’s Department violated the illegal search and seizure protections provided by the Fourth Amendment of the United States Constitutions.

No search warrant had been issued before Department Deputies went into the home, searched it–including climbing the stairs to the second floor.

In a case reported by the Chicago Tribune today.

In the Chicago case, the Tribune titled the article

$565,000 award in bungled cop raid

The jury found, “…one officer at fault for a falsified warrant and two others responsible for the illegal 2007 search,” according to the article.

By settling the cases brought by Dr. Jerome and Carla Pavlin for $300,000 without a trial, perhaps the county saved its risk management agency money.

It also saved the deputies that took part on the raid possible personal penalties, such as were levied in the Cook County case:

• Officer Sean Dailey -$100,000
• Sgt. Salvatore Reina – $10,000
• former Lt. Dennis Ross – $5,000

And these guys didn’t injure two senior citizens, a situation that might have garnered jurors’ sympathy.

Seven McHenry County Sheriff Department Deputies were defendants in the Pavlin case.

A summary of the case and the first $118,000 in legal fees can be found here.

Meanwhile in an alternative universe, McHenry County Sheriff Keith Nygren told the Northwest Herald,

“Our officers did nothing wrong.

“Our people did the right thing, and I support them 100 percent.”

The headline above is excerpted from that part of Federal Judge Frederick Kapala’s decision which you can read below:

“B. Plaintiffs’ Motion for Partial Summary Judgment

“In their motion, plaintiffs request summary judgment on Count V of their complaint, claiming that defendants violated their Fourth Amendment rights by entering their house to arrest Carl and reentering and/or remaining in their house after Carl had been removed and placed in a squad car.

“Plaintiffs contend that no exigent circumstances existed to justify defendants’ warrantless entry into their house.

“In their response, Defendants claim that they did have probable cause to enter the home; that Carl was located in the threshold of the home, a public area; and that exigent circumstances existed because Carl attempted to shut the door and retreat into the house and because defendants needed to be sure the home was secure after the glass pane in the door was broken.

“Here, viewing the facts in the light most favorable to defendants, the court concludes that summary judgment is appropriate as to plaintiffs’ claim that defendants violated their Fourth Amendment rights by entering their house to arrest Carl.

“As in their motion for partial summary judgment, in their response to plaintiffs’ motion, defendants do not specify the exigent circumstances that warranted their entry into plaintiffs’ house, but seem to focus their argument on a claim that Carl was in the threshold of the house, a public place.

“As the court reasoned above, there is no evidence before the court to suggest that Carl was in the threshold of the home at the time of his arrest.

“Rather, the evidence before the court demonstrates that Carl was not in the threshold at the time of his arrest, as he opened the door only a few inches and did not stick his face in the door to see the officers.

“Further, defendants’ statement that Carl closed the door and “tried to escape into the house” is insufficient to establish that exigent circumstances existed to justify defendants’ entry into the house.

“While entry may be justified to prevent a suspect’s escape, an escape “into the house” is not an exigent circumstance.

“Rather, defendants would have to show that they had a concern that Carl would escape from, not into, the house, and would do so before defendants could obtain a search warrant for the house. United States v. Patino, 830 F.2d 1413, 1416 (7th Cir. 1987) (finding that exigent circumstances were not present where four police officers could have surrounded the suspect’s home to prevent a possible escape attempt while obtaining a telephonic warrant to search the suspect’s house); see also United States v. Green, 41 F.3d 1511, 1994 WL 622147, at *2 (7th Cir. 1994) (finding that exigent circumstances existed to prevent the escape of a suspect when officers learned that a person was hanging his foot, arms and head out of a second-floor window in an apparent escape attempt).

“Even viewing the facts in the light most favorable to defendants, defendants have not identified evidence to support their position that exigent circumstances existed to justify their otherwise unlawful entry into plaintiffs’ house.

“Plaintiffs’ motion for partial summary judgment is therefore granted.”

I quote the Fourth Amendment to the United States Constitution here.

You can read the entire decision here.

You may remember that McHenry County Sheriff’s Department deputies were found by Federal Judge Frederick Kapola to have violated the U.S. Constitutional rights of Dr. Jerome and Carla Pavlin.

The Fourth Amendment to be specific.

Here’s what that part of the U.S. Constitution says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

He made that finding in his decision to allow major parts of the case to go to trial.

The Sheriff’s Department’s attorneys appealed the decision, but that motion to reconsider was denied.

They entered the couple’s home on March 14, 2008, without a search warrant and hurt both husband and wife.

And who was arrested?

The Pavlins.

This is the case in which information supplied by Zane Seipler, which he heard before he was fired by Sheriff Keith Nygren, led McHenry County State’s Attorney Lou Bianchi to dismiss charges brought by the Sheriff’s Department.

This is also the case the State Police investigated, finding nothing amiss. The State Police did not interviewed the Pavlins or Seipler.  Seipler was listening over the radio to the incident.

“I can tell you my clients are happy with the settlement,” winning attorney Louis Meyer said.

“As the record stands the Deputies violated the Pavlins’ Fourth Amendment Rights to be free from unreasonable searches. There is a Federal Court Decision that states that.

“The Deputies will now all have that decision out there in the public where the Judge ruled they violated the Pavlins’ constitutional rights.

“This was a large settlement in my opinion.”

Settlements were reached with both Carla and Jerome Pavlin.

Mrs. Pavlin will get $200,000.

Mr. Pavlin $100,000.

Chicago Tribune reporter Bob McCoppin broke the story and found that local taxpayers only have to foot $100,000.

As of mid-June, 2011, the legal fees only exceeded that amount.

The rest is paid by an insurance policy.

No admission of liability on the part of any of the defendants, of course.

The defendants were

• McHENRY COUNTY
• KEITH NYGREN
• JEREMY BRUKETTA, Star 1909
• KYLE MANDERNACK, Star 1726
• TREVOR VOGEL, Star 1773
• CHRISTOPHER JONES, Star 1877
• RYAN LAMBERT, Star 1941
• GREG PYLE, Star 1672
• DAVID SHEPHERD, Star 142

You can read a summary of the case here.

The County summarizes it like this:

“Plantiff alleges false arrest, excessive force, failure to intervene, illegal search, of home civil conspiracy, malicious persecution.”

The case, as it was filed in July of 2009 is here.

You can read the settlement with Carla Pavlin below:

Dr. Jerome Pavlin’s settlement is below:

You might be interested to know that the suit brought by Dr. Jerome and Carla Pavlin against the McHenry County Sheriff’s Department has racked up $186,148.46 so far.

The last time we checked in November, 2011), the total was $118,000.

Before you jump to the conclusion that it cost local taxpayers that much, you need to know that McHenry County had an arrangement with a risk management agency that “only” made McHenry County pay the first $100,000 in bills from outside attorneys.

So, as with the wrongful termination case Deputy Zane Seipler brought against the Sheriff’s Department, where total legal fees are over $881,000, taxpayers only are on the hook for the first $100,000.

The defendants were

• McHENRY COUNTY
• KEITH NYGREN
• JEREMY BRUKETTA, Star 1909
• KYLE MANDERNACK, Star 1726
• TREVOR VOGEL, Star 1773
• CHRISTOPHER JONES, Star 1877
• RYAN LAMBERT, Star 1941
• GREG PYLE, Star 1672
• DAVID SHEPHERD, Star 142

A settlement has been reached, but the details of how much it will be have not been made public. The $7 million settlement with two men in the Chicago Police Commander John Burge torture case was made public as the Chicago City Council prepared to pay it.

A person familiar with the case has written for following summary:

On March 14, 2008, Jerome, who was 80-years-old at the time, and Carla, who was 65-years-old at the time, were at their home located in unincorporated Crystal Lake.

At approximately 8:30 p.m., Jerome and his son, Carl, were sitting in the living room watching television while Carla was in the bedroom reading.

While watching television, Jerome and Carl heard someone banging on the front door.

As there is a large partition that separates the living room from the foyer near the front door, Jerome and Carl could not see who was at the door.

Carl got up and walked into the foyer to see who was at the door.

When Carl got into the foyer, he cracked open the front door and asked what the men at the door wanted.

Defendants Jeremy Bruketta and Christopher Jones told Carl that they were McHenry County Sheriff’s deputies and had an arrest warrant for Carl.

Bruketta and Jones then began to push the door open.

As a result of their pushing, glass on the front of the door broke.

Photographs taken of the scene show that the glass was broken from outside and not from the inside of Jerome and Carla=s home.

Bruketta and Jones then entered the Pavlin home.

Bruketta and Jones were never given permission to enter Jerome and Carla’s home.

Prior to coming to Jerome and Carla=s home, Bruketta and Jones both knew that Carl did not live there.

In fact, they knew that Carl lived at another address and was just at Jerome and Carla’s home visiting.

Bruketta and Jones only had a misdemeanor arrest warrant for Carl.

They did not have a search warrant for Jerome and Carla’s home.

The search included the second floor, as this Sheriff’s Department photo shows.

The misdemeanor arrest warrant for Carl did not list Jerome and Carla’s address.

After entering the Pavlin home, Bruketta and Jones placed Carl into custody.

Carl did not resist Bruketta and Jones.

While handcuffing Carl, Jerome walked towards the foyer because he heard the front door brake.

When Jerome got to the foyer, he saw Bruketta handcuffing Carl.

Jerome asked Bruketta and Jones what they were doing in his house. Bruketta and Jones told Jerome that they had an arrest warrant for Carl.

After Carl was handcuffed, Jerome told Bruketta and Jones to get out of his home.

Bruketta and Jones did not leave Jerome and Carla=s home as ordered. Arguably, and according to the McHenry County State’s Attorney’s office,

Bruketta and Jones had no legal authority to enter Jerome and Carla’s home in the first place.

After they had Carl in custody, they certainly did not have any legal authority to remain in Jerome and Carla’s home after Jerome told them to leave.

A short time later, Defendants Mandernack, Vogel and Lambert arrived at Jerome and Carla’s home.

Mandernack, Vogel and Lambert entered the Pavlin home.

Jerome again asked the Defendants to get out of his house.

At this time, Bruketta escorted Carl out to a squad car. Defendants Mandernack, Vogel, Lambert, and Jones remained in the Pavlin home. Jerome again asked them to leave.

They did not.

Instead, the offices told Jerome that they were going to search the home.

Jerome told the officers that they could not search his home and that they had to leave. Jerome also asked to see the search warrant that would authorize them to conduct the search.

As the officers did not have a search warrant, none was produced and the officers did not leave.

At this time, Carla heard commotion in the foyer.

Carla exited her bedroom and walked into the foyer.

A view from outside the front door.

Jerome told Carla to call 911 and request the assistance of the Crystal Lake Police Department because the officers would not leave his home.

Carla called 911 and asked for police assistance.

The dispatcher told Carla that since they live in unincorporated Crystal Lake, that the McHenry County Sheriff’s Office is the only police that would respond.

Carla was speechless as it was members of the McHenry County Sheriff’s Office that she and Jerome needed protection from and needed to get out of their home.

On the 911 recording, you can actually hear the officers going through the Pavlin house searching and touching objects.

Additionally, you can hear an upset Jerome telling the officers not to touch anything and get out.

After getting nowhere with 911, Carla and Jerome again asked the officers to leave.

Jerome stood right in front of Mandernack, who appeared to be the instigator of the search and refusal to leave the home, and once again told him that they needed to leave their home.

Carl was already in handcuffs and outside in a squad car.

Their arrest was made and Carl was in custody.

The officers, however, would not leave.

While Jerome was telling Mandernack and the other officers to leave, Mandernack and Vogel grabbed the 80-year old Jerome and violently knocked him to the floor.

Mandernack and Vogel then kneed Jerome.

Lambert also came over and grabbed Jerome.

Jerome screamed out in pain for the Defendants to stop.

Defendants Jones and Burketta stood by and did nothing.

Since Jones and Burketta did nothing, Carla went over to where Jerome and the officers were and tried to stop the officers from hurting Jerome.

Carla touched Mandernack on his uniform in an attempt to gain his attention.

Carla was successful.

Mandernack turned and violently punched Carla in the chest.

Carla was knocked against a granite counter top that is attached to the partition that separates the living room from the foyer.

Carla severely injured her back.

Photographs taken of Carla shortly after the incident depict a large bruise on her chest and a large bruise on her back.

Mandernack’s claim that he pushed Carla and she simply fell back on her butt is not supported by the evidence and, in fact, the evidence contradicts Mandernack’s claim.

At this time, Defendants Pyle and Shepherd arrived on the scene.

Carla was unable to get up and the Defendants called for an ambulance.

Mandernack handcuffed Jerome extremely tight.

So tight that the handcuffs cut into his wrists.

Jerome told Mandernack that he was injured. Mandernack ignored Jerome.

Later, Mandernack claims he noticed that Jerome’s arms were bleeding, Mandernack then decided to take Jerome to the hospital.

Carla was taken directly to Northern Illinois Medical Center for medical attention.

As both the 80-year-old Jerome and 65-year-old Carla were injured and receiving medical attention, the Defendant-Officers had a big problem.

In an attempt to solve their problem, the Defendant-Officer came up with a plan to falsely claim that is was the Jerome and Carla that attacked them.

Mandernack, therefore, signed criminal complaints against Jerome and Carla for felony aggravated battery and resisting arrest.

After being processed and falsely charged with aggravated battery to a police officer and resisting a peace officer, Jerome bonded out of jail.

Carla did not go to the McHenry County Jail that night as she remained hospitalized due to her injuries.

Carla was treated for swelling, bruising, chest pain, and anxiety.

After leaving the hospital, Carla went to The Fountains at Crystal Lake where she remained for treatment.

Carla’s injuries rendered her immobile for approximately two weeks.

Carla was also treated by her primary doctor, Dr. Eduardo Palanca, regarding the injuries she sustained.

Jerome was treated at Northern Illinois Medical Center for lacerations to wrists, bruising to his chest, bruising to his arms, bruising to his back, and neck pain.

Jerome also received follow-up medical treatment from his primary doctor.

Jerome and Carla=s allegations are corroborated by witnesses, the medical records, and the photographs of their injuries.

Zane Seipler

Additionally, Wendy Wesolek, a probation officer for McHenry County, informed Assistant State’s Attorney Ryan Blackney, who was handling the Pavlin case, that one of the Defendants, Ryan Lambert, told her that he was upset about the Pavlin arrest and that the arrest reports were written together and changed at the direction of supervisors.

Furthermore, Zane Seipler, the now-reinstated McHenry County Sheriff’s Deputy, spoke with the Pavlin’s criminal defense attorneys and informed him that he witnessed the meeting where the reports were falsely prepared.

As a result, the bogus charges against Jerome and Carla were nolle prosequied with prejudice by motion of the state on July 14, 2009.

Even though Jerome and Carla knew they did nothing wrong to warrant the arrest and excessive force, they still feared people in the community would read of their arrest.

This concerned Jerome and Carla very much as they are a well respected family in the community.

They also were concerned of the possibility of being found guilty based upon fabricated testimony of the Defendants.

The charges against Jerome and Carla carried sentences of 2-5 years in prison.

Use of force by Mandernack is a serious issue.

Although in his verified discovery answers, Mandernack denies that there have ever been any allegations made against him involving the use of excessive force, we know that not to be true.

Once such allegation of excessive force is the arrest of Bradley Mitroff on February 22, 2007.

That allegation was sent to the Illinois State Police to do an investigation.

A second allegation surfaced after the arrest of Sean Connell on January 9, 2008.

Additionally, ASA Blackney told Mrs. Wesolek that during the criminal trial Mark Gummerson had subpoenaed prior misconduct of the Defendants.

After an in camera inspection of the documents produced by the Sheriff’s Officer, there was not prior cases of misconduct discovered.

Mrs. Wesolek was surprised and responded to Blackney by saying, “AI wonder what happened to that.”

“Defendants’ motion to alter judgment is denied.”

That’s the summary of the decision rendered by Judge Frederick J. Kapala in the case in which Jerome and Carla Pavlin sued a whole passel of McHenry County Sheriff’s Deputies

• Jeremy Bruketta
• Kyle Mandernack
• Trevor Vogel
• Christopher Jones
• Ryan Lambert
• Greg Pyle
• David Shepherd

plus Sheriff Keith Nygren, plus McHenry County (taxpayers).

Here’s all the Judge wrote:

Now before the court is defendants’ motion to alter judgment pursuant to Federal Rule of Civil Procedure 59(e), requesting that the court amend its November 10, 2011 order granting summary judgment in favor of plaintiffs as to Count V of plaintiffs’ complaint, which alleged that defendants lacked probable cause to enter the Pavlin home without a search warrant in order to arrest Carl Pavlin.

Rule 59(e) allows a court to alter or amend a judgment only when the movant

1. presents newly discovered evidence;
2. shows that there has been an intervening change in the law; or
3. demonstrates that the court has committed a manifest error of law [emphasis added].

This Sheriff's Department photo indicates some McHenry County Sheriff's Deputy was upstairs in a case in which the homeowners were not present with a search warrant..

Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008); Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). “A ‘manifest error’ is not demonstrated by the disappointment of the losing party.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Rather, a manifest error “is the wholesale disregard, misapplication, or failure to recognize controlling precedent.” Id. (quotation marks omitted).

Defendants proceed on the manifest error of law prong, [emphasis added] contending

• that the court erred in rejecting their argument that sufficient exigent circumstances were present to form the basis for probable cause to enter the Pavlin house, or
• that under the facts of this case, the question was not so well settled as to be free and clear from doubt, such that defendants would be entitled to qualified immunity.

Defendants argue that the court improperly found that Carl did not abandon his privacy interest for Fourth Amendment purposes in opening the door to police officers.

The front door's window was broken.

They submit that the court committed a manifest error of law in failing to include in its statement of facts that defendants knew what Carl looked like and that Bruketta was able to positively identify Carl as the subject of the arrest warrant when Carl opened the door. Defendants rely on United States v. Santana, 427 U.S. 38 (1976) in support of their position, arguing that a suspect may not avoid arrest by simply retreating into a dwelling. In Santana, which the court considered in its previous order, the United States Supreme Court held that the defendant was in a public place for Fourth Amendment purposes when she stood in an open doorway. Santana, 427 U.S. at 42. The Court found that the defendant’s act of retreating into her house could not “thwart an otherwise proper arrest” under the doctrine of “hot pursuit” or exigent circumstances because “there was a realistic expectation that any delay would result in the destruction of evidence” where the defendant was holding a brown paper bag the police believed to contain heroin. Id. at 42-43. In so finding, the Court stated that “a suspect may not defeat an arrest which has been set in motion in a public place . . . by the expedient of escaping into a private place.” Id. at 43.

Neither Santana nor any other authority presented by defendants stands for the proposition that where the
police recognize a defendant who has answered the door without abandoning his Fourth Amendment privacy interest, the police may enter the home to arrest that defendant absent the defendant’s acquiescence to the entry or exigent circumstances.

As the court’s previous order stated, the Seventh Circuit has held that “[a] person does not abandon [his] privacy interest in his home by opening his door from within to answer a knock.” United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991).

Rather, the Seventh Circuit has found that an entry is reasonable for Fourth Amendment purposes where a person answers a knock, then “acquiesces to a slight entry to complete the arrest.” Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 690 (7th Cir. 2001).

Another Sheriff's Department photo of the damage that occurred.

In addition, the Seventh Circuit has found that even when a person does not abandon his privacy interest by answering a knock, under the “plain view” doctrine, if having seen from the threshold . . . a person who they have probable cause to believe has committed a crime and should be arrested, the police reasonably fear that before they can obtain a warrant the contraband or evidence will be destroyed or the criminal flee the nest, the case becomes one of “exigent circumstances” and the police can take steps to secure the evidence or the person. Hadley v. Williams, 368 F.3d 747, 750 (7th Cir. 2004).

Here, defendants have failed to show a manifest error in the court’s finding that Carl did not abandon his Fourth Amendment privacy interest by answering defendants’ knock.

The evidence before the court indicates that Carl did not acquiesce to a slight entry by defendants to complete the arrest, but attempted to shut the door.

Further, there is no evidence before the court to suggest that defendants had a realistic expectation that any delay in following Carl into the house would result in the destruction of evidence or in Carl fleeing the home.

The United States Supreme Court and Seventh Circuit authority cited above indicates that merely recognizing Carl was insufficient to justify defendants’ entry absent such an acquiescence or exigent circumstances.

In the alternative, defendants argue that if their entry into the Pavlin house was unlawful, they should be
entitled to qualified immunity with respect to the entry.

Defendants ask the court to follow the First Circuit in Joyce v. Town of Tewksbury, Mass., 112 F.3d 19, 22 (1st Cir. 1997) and the Seventh Circuit in Sparing to find that the law surrounding “doorway arrest” questions was not so clearly established at the time of Carl’s arrest to defeat qualified immunity.

Here, the arrest in question occurred in 2008, 11 years after the First Circuit’s decision in Joyce and 7 years after the Seventh Circuit’s decision in Sparing.

It was, therefore, not manifest error for the court to find that after Sparing and Hadley, case law on “doorway arrest” questions was clearly established such that a reasonable officer would have known that entering the house to arrest Carl without a warrant and absent acquiescence or exigent circumstances violated the Fourth Amendment.

In this motion, defendants advocate the same position this court previously rejected on summary judgment.

Defendants’ motion for reconsideration is therefore denied, as they have not demonstrated that the court has committed a manifest error of law.

So, the November judgment against the defendants stands. An article about the case since inception can be found here.

The Defendants could appeal to the 7th Circuit of Appeals.

Louis J. Meyer represents the Pavlins.  Stephen E. Balogh represents the Defendants.

= = = = =
The Fourth Amendment says,

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Major parts of the case filed July 17, 2009, by Crystal Lake senior citizens Jerome and Carla Pavlin against McHenry County has withstood attempts to have it dismissed and will go to trial in Federal Judge Frederick Kapala’s new Rockford courtroom.

Pavlin attorney Louis Meyer summarizes the decision:

“The Court ruled that the entry into the Pavlin home was a constitutional violation.

“We won that count. That was a big reason that Bianchi’s office dismissed the criminal charges (with prejudice). The Federal Judge agreed with Bianchi’s office that the officers did not have legal authority to barge into the Pavlin’s home to arrest their son who did not live there.”

The defendants were

• McHENRY COUNTY
• KEITH NYGREN
• JEREMY BRUKETTA, Star 1909
• KYLE MANDERNACK, Star 1726
• TREVOR VOGEL, Star 1773
• CHRISTOPHER JONES, Star 1877
• RYAN LAMBERT, Star 1941
• GREG PYLE, Star 1672
• DAVID SHEPHERD, Star 142

During last year’s election against Democrat Mike Mahon, Sheriff Keith Nygren got the Illinois State Police to write a report that cleared his deputies of wrongdoing.

Going against the wishes of Sheriff Nygren, McHenry County State’s Attorney Lou Bianchi refused to prosecute the Pavlins for the felonies with which they were charged. based at least in part on what then-Deputy Sheriff Zane Seipler told him about what he knew of the incident.  (Seipler’s involvement is mentioned in the decision.)

In June of last year Nygren’s new Undersheriff Andy Zinke used the exculpatory State Police report to attack McHenry County State’s Attorney Lou Bianchi in the Northwest Herald.  It resulted in this sharply-worded retort from Bianchi.

November 10, 2011, Judge Frederick Kapala entered a decision on requests for summary judgments from both sides of the lawsuit.

He explains, quoting a court case, that summary judgment can only be entered “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”

The judge decided the following Pavlin claims can go to trial:

• whether unlawful entry occurred
• whether Deputy Kyle Mandernack had probable cause to arrest Jerome and Carla
• whether the excessive force claim against Jerome by Kyle Mandernack and Tevor Vogel is valid
• whether the defendants conspired to violate the Pavlins’ Fourth Amendment rights

Louis J. Meyer of Meyer & Kiss is representing the Pavlins. Stephen E. Balogh represents the Sheriff’s Deputies.

The entire decision can be found here.
= = = = =
The Fourth Amendment says,

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The following press release has been received from Zane Seipler, who is running against Sheriff Keith Nygren in the GOP primary election on February 2nd.

It comments on this Northwest Herald article.

I’d be willing to bet that the inspiration for that article was Seipler’s web site, McHenry County Sheriff’s Department Exposed.

There is so much there, including a very early post entitled “Ratio of Supervisors to Deputies.”

It’s one supervisor to every three deputies.

When I was studying public administration in grad school at the University of Michigan I seem to remember that one supervisor could ride herd over 8 or 9 employees.

“Seipler, Nygren differ over supervisor ratios”

A response to the Northwest Herald Article

On January 20, 2010, an article was printed in the Northwest Herald titled “Seipler, Nygren differ over supervisor ratios”.

A reporter I have talked to many times, contacted me late last week to comment on this story. She and I had a five to ten minute conversation about the way she reports.

I explained to her that refusing to comment was better than being misquoted, not quoted and misrepresented.

In the last 35 articles the Northwest Herald has written since I entered this race it is easy to see which way the paper leans. Their support of Keith Nygren’s re-election is not limited to the paper’s editorial page.

When I made mention of this, she immediately stated, “The editor makes the changes”.

I am glad to see that today’s article fairly states the circumstances of my wrongful termination. I am happy to see that she took to heart the comments I made with regards to the traffic stop that so often gets mentioned in every article where my name is present. I feel today’s article shows positive improvement and diligent journalistic investigation. This type of journalism pleases me immensely considering that, win or lose this election, I will be the focus of countless more Northwest Herald articles in the years to come.

The issue discussed is “Top Heavy” supervision.

The writer reports that under Keith Nygren the ratio is three and a half deputies to every one supervisor.

It was not always this way.

In the last several years the number of supervisors has increased.

The number of deputies has remained relatively constant. Supervisor positions were created for the Traffic Unit and the Apprehension Unit. The Apprehension Unit consists of one sergeant and two deputies.

Nygren would have you believe that this unit is constantly coordinating with the U.S. Marshal Service in attempts to apprehend fugitives here in McHenry County. This is not true.

The Marshal Team assists the Apprehension Unit once maybe twice a month. The rest of the time the sergeant is supervising two deputies.

The Traffic Unit is a little more complicated and, because of that, a secondary supervisor assists the primary supervisor.

This is wasteful when you consider that the deputies involved with the Traffic Unit are all certified accident investigators, all well versed in trial testimony and all self motivated, highly intelligent individuals. They don’t need two supervisors looking over their shoulders. This pattern of bureaucracy can be seen in the Investigation Division as well.

“Whatever we do out there [on the more serious calls] at some point very likely will be litigated in court, and you want to know that you’re setting the record straight so you have all the information you need to go to court,” Nygren said.

In March of 2008 Jerome and Carla Pavlin were seriously injured and arrested by five McHenry County deputies. Two supervisors arrived on the scene that day.

In the summer of 2009 the McHenry County State’s Attorney dismissed all charges against the Pavlins with prejudice. The reason for the dismissal was evidentiary inconsistencies.

Keith Nygren was quoted by the Daily Herald as saying, “I’m at a total loss to explain what happened here and why it happened”.

This case will go to court, again. It will cost the taxpayers of McHenry County possibly millions of dollars. The number of supervisors present isn’t going to change that.

More supervisors make it easy for Nygren to pass the “buck” and take no responsibility. That is the reason he thinks a 3.5 to 1 ratio is fine. More people to blame when everything goes bad.

I am confident that if I would have made these statements to the Northwest Herald reporter, they never would have been printed.

Zane Seipler- Republican Candidate for Sheriff

Here’s the suit by Jerome and Carla Pavlin of rural Crystal Lake.

McHenry County State’s Attorney Lou Bianchi’s office dismissed the charges brought by the sheriff’s department last week.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

JEROME PAVLIN, and )
CARLA PAVLIN, )
)
Plaintiffs, ) No.
)
vs. ) Judge
) Magistrate Judge
McHENRY COUNTY, )
KEITH NYGREN, ) Jury Demand
JEREMY BRUKETTA, Star 1909, )
KYLE MANDERNACK, Star 1726, )
TREVOR VOGEL, Star 1773, )
CHRISTOPHER JONES, Star 1877, )
RYAN LAMBERT, Star 1941, )
GREG PYLE, Star 1672, and )
DAVID SHEPHERD, Star 142, )
)
Defendants. )

COMPLAINT

1.This is an action for money damages brought pursuant to 42 U.S.C. § 1983, and the common law and statutes of the State of Illinois.

2.Jurisdiction for Plaintiffs’ federal claims is based on 28 U.S.C. §§ 1331 and
1343(a). Jurisdiction for Plaintiffs’ state claims is based on supplemental jurisdiction pursuant to 28 U.S.C. ྷ 1367(a).

3.Venue is proper in this Court pursuant to 28 U.S.C. ྷ 1391(b), in that the claims
arose in this district as alleged below.
Parties.

4.Plaintiffs are residents of Crystal Lake, Illinois.

5.At the time of the incident, Plaintiff Jerome Pavlin was 80 years-old, and Plaintiff Carla Pavlin was 65 years-old.

6.Defendant-Officers are duly appointed and sworn McHenry County Sheriff’s deputies. At all times relevant to this Complaint, the Defendant-Officers were acting in the course and scope of their employment, and under color of state law, ordinance and/or regulation.

7.The Defendant-Officers are sued in their individual capacities.

8.Defendant KEITH NYGREN is the Sheriff of McHenry County, and is liable for the common law claims alleged below pursuant to Respondeat Superior.

Facts

9.On or about March 14, 2008, at approximately 8:30 p.m., Plaintiffs were at their home in Crystal Lake, Illinois.

10.While Plaintiff JEROME PAVLIN was sitting in his living room watching television with his son, Carl, they heard banging on the front door.

11.Carl went to the door to see who was there.

12.Defendants BRUKETTA and JONES were at the Plaintiffs’ door.

13.Carl asked BRUKETTA and JONES what they wanted.

14.BRUKETTA and JONES told Carl that they had a warrant for his arrest.

15.BRUKETTA and JONES then violently pushed the front door to Plaintiffs’ home.

16.BRUKETTA and JONES broke the glass on Plaintiffs’ front door.

17.JEROME heard the glass break and walked towards the front door.

18.Defendants MANDERNACK, VOGEL and LAMBERT arrived on the scene.

19.JEROME asked the Defendant-Officers what they were doing in his house.
20.The Defendant-Officers did not respond.

21.BRUKETTA place Carl under arrest.

22.BRUKETTA escorted Carl out of the Plaintiff’s home.

23.Defendants MANDERNACK, VOGEL, JONES, and LAMBERT told JEROME that they were going to search his home.

24.JEROME told the Defendant-Officers that they could not search his home and he asked the Defendant-Officers to leave.

25.The Defendant-Officers refused to leave Plaintiffs’ home.

26.Defendant-Officers tackled JEROME to the ground.

27.Defendants MANDERNACK, VOGEL, and LAMBERT beat JEROME.

28.Defendants JONES and BURKETTA had an opportunity to intervene and prevent MANDERNACK, VOGLE and LAMBERT from beating JEROME, but failed to do so.

29.Plaintiff CARLA PAVLIN heard the Defendant-Officers beating JEROME.

30.CARLA tried to get the attention of the Defendant-Officers.

31.MANDERNACK violently pushed CARLA in the chest.

32.CARLA was knocked against a granite counter top and was severely injured.

33.Defendants VOGEL, LAMBERT, JONES and BURKETTA had an opportunity to intervene and prevent MANDERNACK from beating CARLA but failed to do so.

34.Defendants PYLE and SHEPHERD were on the scene.

35.MANDERNACK handcuffed JEROME.

36.MANDERNACK intentionally put the handcuffs on JEROME excessively tight which caused JEROME extreme pain.

37.JEROME was under arrest.

38.Defendant-Officers did not have probable cause or any other legal justification to arrest JEROME.

39.An ambulance was called for Plaintiff CARLA PAVLIN.

40.CARLA was taken by ambulance to Northern Illinois Medical Center for medical attention.

41.MANDERNACK and LAMBERT transported JEROME to Northern Illinois Medical Center for medical attention.

42.MANDERNACK, VOGEL, LAMBERT, BRUKETTA, JONES, PYLE and SHEPHERD then conspired and acted together to cover up the false arrest of Plaintiffs without probable cause or legal authority.

43.MANDERNACK, VOGEL, LAMBERT, BRUKETTA, JONES, PYLE and SHEPHERD made out false and incomplete official reports and gave a false and incomplete version of the event to other police officers investigating the incident in order to cover up their misconduct.

44.PYLE approved the official reports prepared by MANDERNACK, VOGEL, LAMBERT, BRUKETTA, and JONES.

45.JEROME PAVLIN was charged with aggravated battery to a police officer and resisting a police officer. The case was docketed in the Circuit Court of the 22nd Judicial Circuit as: People v. Jerome Pavlin, 08 CF 233.

46.CARLA PAVLIN was charged with aggravated battery to a police officer and obstructing a police officer. The case was docketed in the Circuit Court of the 22nd Judicial Circuit as: People v. Carla Pavlin, 08 CF 252.

47.On July 14, 2009, the charges against the Plaintiffs were nolled prossed and dismissed with prejudice.

48.Each individual Defendant-Officer acted willfully and wantonly, maliciously, and with a conscious disregard and deliberate indifference to Plaintiffs’ rights.

49.As a direct and proximate result of the acts of the Defendants described above, Plaintiffs suffered damages including loss of physical liberty, physical pain and suffering, emotional distress and pecuniary damages including medical expenses, attorneys’ fees, monies posted for bond, and, property damage.

COUNT I
(42 U.S.C. ྷ 1983 – False Arrest)

50.Plaintiffs reallege paragraphs 1 through 49 as if fully set forth herein.

51.Defendant-Officers MANDERNACK, JONES, BRUKETTA, VOGEL, and LAMBERT placed Plaintiffs under arrest.

52.MANDERNACK, JONES, BRUKETTA, VOGEL, and LAMBERT did not have an arrest warrant, probable cause, reasonable suspicion, or any other lawful basis to arrest or detain Plaintiffs.

53.The arrest of Plaintiffs without any legal justification or probable cause violated their Fourth Amendment right, as guaranteed by the Fourteenth Amendment, to be free from unreasonable seizures.

WHEREFORE, Plaintiffs ask that this Honorable Court:

a) Enter judgment against Defendant-Officers MANDERNACK, JONES, BRUKETTA, VOGEL, and LAMBERT,

b) Award Plaintiffs compensatory and punitive damages,

c) Award attorneys’ fees and costs, and

d) Award any further relief that this Honorable Court deems just and equitable.

COUNT II
(42 U.S.C. ྷ 1983 – Excessive Force)

54.Plaintiff JEROME PAVLIN realleges paragraphs 1 through 49 as if fully set forth herein.

55.Defendant-Officers MANDERNACK, VOGEL, and LAMBERT violated JEROME PAVLIN’s Fourth Amendment right, as guaranteed by the Fourteenth Amendment, to be free from the use of excessive and unreasonable force.

WHEREFORE, Plaintiff JEROME PAVLIN asks that this Honorable Court:

a) Enter judgment against Defendant-Officers MANDERNACK, VOGEL, and LAMBERT,

b) Award Plaintiff compensatory and punitive damages,

c) Award attorneys’ fees and costs, and

d) Award any further relief that this Honorable Court deems just and equitable.

COUNT III
(42 U.S.C. ྷ 1983 – Excessive Force)

56.Plaintiff CARLA PAVLIN realleges paragraphs 1 through 49 as if fully set forth herein.

57.Defendant MANDERNACK violated CARLA PAVLIN’s Fourth Amendment right, as guaranteed by the Fourteenth Amendment, to be free from the use of excessive and unreasonable force.

WHEREFORE, Plaintiff CARLA PAVLIN asks that this Honorable Court:

a) Enter judgment against Defendant MANDERNACK,

b) Award Plaintiff compensatory and punitive damages,

c) Award attorneys’ fees and costs, and

d) Award any further relief that this Honorable Court deems just and equitable.

COUNT IV
(42 U.S.C. ྷ 1983 – Failure to Intervene)

58.Plaintiffs reallege paragraphs 1 through 49 as if fully set forth herein.

59.While Plaintiffs were subjected to excessive force as described above, Defendant-Officers MANDERNACK, JONES, BRUKETTA, VOGEL, and LAMBERT had an opportunity to intervene, but chose not to intervene.

60.Defendant-Officers MANDERNACK, JONES, BRUKETTA, VOGEL, and LAMBERT were deliberately indifferent to Plaintiff’s right to be free from excessive and unreasonable force.

WHEREFORE, Plaintiff asks that this Honorable Court:

a) Enter judgment against Defendant-Officers MANDERNACK, JONES, BRUKETTA, VOGEL, and LAMBERT,

b) Award Plaintiffs compensatory and punitive damages,

c) Award attorneys’ fees and costs, and

d) Award any further relief that this Honorable Court deems just and equitable.

COUNT V
(42 U.S.C. ྷ 1983 – Illegal Search of Home)

61.Plaintiffs reallege paragraphs 1 through 49 as if fully set forth herein.

62.Defendant-Officers searched Plaintiffs’ home.

63.Defendant-Officers did not have a search warrant, consent, exigent circumstances,
or any other legal justification to search Plaintiffs’ home.

64.Searching Plaintiffs’ home without any legal justification violated their Fourth Amendment right, as guaranteed by the Fourteenth Amendment, to be free from unreasonable searches.

WHEREFORE, Plaintiffs ask that this Honorable Court:

a) Enter judgment against Defendant-Officers,

b) Award Plaintiffs compensatory and punitive damages,

c) Award attorneys’ fees and costs, and

d) Award any further relief that this Honorable Court deems just and equitable.

COUNT VI
(42 U.S.C. ྷ 1983 – Civil Conspiracy)

65.Plaintiffs reallege paragraphs 1 through 49 as if fully set forth herein.

66.Defendant-Officers MANDERNACK, VOGEL, LAMBERT, BRUKETTA, JONES, PYLE and SHEPHERD knowingly and intentionally schemed and worked together in a common plan to violate Plaintiff’s constitutional rights.

67.MANDERNACK, VOGEL, LAMBERT, BRUKETTA, JONES, PYLE and SHEPHERD, conspired and acted together to cover up the false arrest of Plaintiffs without probable cause or legal authority.

68.MANDERNACK, VOGEL, LAMBERT, BRUKETTA, JONES, PYLE and SHEPHERD made out false and incomplete official reports and gave a false and incomplete version of the event to other police officers investigating the incident in order to cover up their misconduct.

WHEREFORE, Plaintiffs ask that this Honorable Court:

a) Enter judgment against Defendant-Officers,

b) Award Plaintiffs compensatory and punitive damages,

c) Award attorneys’ fees and costs, and

d) Award any further relief that this Honorable Court deems just and equitable.

COUNT VII

(State Law Claim for Malicious Prosecution)

69.Plaintiff JEROME PAVLIN realleges paragraphs 1 through 49 as if fully set forth herein.

70.Defendant MANDERNACK instituted charges against JEROME for aggravated battery to a police officer and resisting a police officer.

71.There was not probable cause for such charges.

72.The charges were terminated in a manner favorable to JEROME.

WHEREFORE, Plaintiff JEROM PAVLIN asks that this Honorable Court:

a) Enter judgment against Defendant MANDERNACK,

b) Award Plaintiff compensatory and punitive damages,

c) Award costs, and

d) Award any further relief that this Honorable Court deems just and equitable.

COUNT VIII
(State Law Claim for Malicious Prosecution)

73.Plaintiff CARLA PAVLIN realleges paragraphs 1 through 49 as if fully set forth herein.

74.Defendant MANDERNACK instituted charges against CARLA for aggravated battery to a police officer and obstructing a police officer.

75.There was not probable cause for such charges.

76.The charges were terminated in a manner favorable to CARLA.

WHEREFORE, Plaintiff CARLA PAVLIN asks that this Honorable Court:

a) Enter judgment against Defendant MANDERNACK,

b) Award Plaintiff compensatory and punitive damages,

c) Award costs, and

d) Award any further relief that this Honorable Court deems just and equitable.

COUNT IX
(State Law Respondeat Superior Claim)

77.The acts of the Defendant-Officers described in the state-law claims specified above were willful and wanton, and committed in the scope of employment.

78.Pursuant to respondeat superior, Defendant KEITH NYGREN is liable for its agents’ actions.

WHEREFORE, Plaintiff demands judgment against Defendant KEITH NYGREN, and such other and additional relief that this Honorable Court deems just and equitable.

COUNT X
(Indemnification Claim pursuant to 745 ILCS 10/9-102)

79.The acts of the Defendant-Officers described in the above claims were willful and wanton, and committed in the scope of employment.

80.Pursuant to the Illinois Tort Immunity Act, 745 ILCS 10/9-102, Defendant McHENRY COUNTY is liable for any judgments in this case arising from the Defendants actions.
WHEREFORE, Plaintiff asks that this Honorable Court order Defendant McHENRY COUNTY to indemnify the Defendants for any judgment entered in this case arising from their actions.

Jury Trial Demanded

Respectfully submitted,

/s/ Lawrence V. Jackowiak
Counsel for the Plaintiffs

Lawrence V. Jackowiak
Law Offices of Lawrence V. Jackowiak
20 North Clark Street, Suite 1700
Chicago, Illinois 60602
(312) 795-9595