McHenry County Blog

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:

“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.”

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