Re: Mark R. McCoy vs. City of Fairview Heights, et al Case No. 10-L-75
Dear Mr. McCoy:
Enclosed is the City of Fairview Heights, Joshua Alemond, and Aaron Nyman's Notice of Filing, and Appearance and Jury Demand with regard to the above case.
Thank you for your attention to this matter.
TSON LLP
dsallerson@hinshawlaw.com
DAS:mjm
Enclosures
I0447380vl 905057 71857 Arizona California Florida Illinois Indiana Massachusetts Minnesota Missouri New York Oregon Rhode Island Wisconsin
HINSHAW
& CULBERTSON LLP
March 11, 2010
ATTORNEYS AT LAW 521 West Main Street Suite 300
P.O. Box 509
Belleville, IL 62222-0509
Honorable Brendan Kelly Clerk of the Circuit Court
Re: Mark R. McCoy vs. City of Fairview Heights, et al Case No. 10-L-75
Dear Sir:
Enclosed please find a Notice of Filing, and Appearance and Jury Demand, for filing on behalf of the City of Fairview Heights, Joshua Alemond, and Aaron Nyman in the abovereferenced case.
A copy of the foregoing has been forwarded to all parties of record.
Thank you for your attention to this matter.
Very truly yours,
RTSON LLP
dsallerson@hinshawlaw.com
DAS:mjm
Enclosures
cc: Mr. Mark R. McCoy 41 Grandview Drive Collinsville, IL 62234
10447368vl 905057 71857 Arizona California Florida Illinois Indiana Massachusetts Minnesota Missouri New York Oregon Rhode Island Wisconsin
IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS ST. CLAIR COUNTY
MARK R. McCOY,
Plaintiff,
) ) ) ) ) ) ) ) ) )
Case No.: 10 L 75
vs.
CITY OF FAIRVIEW HEIGHTS, a
municipal corporation, JOSHUA ALEMOND, and AARON NYMAN,
Defendants.
NOTICE OF FILING
To: Mark R. McCoy
41 Grandview Drive Collinsville, Illinois 62234
YOU ARE HEREBY NOTIFIED that on the # t{1..- day Of~' 2010, the undersigned filed with the Clerk of the above-named Court, Defendants' Appearance and this Notice of Filing, copies of which are hereby being served upon you.
Hinshaw & Culbertson, LLP 521 West Main St., Suite 300 Belleville, IL 62222 Telephone: (618) 277-2700 Facsimile: (618) 277-1144
Page 1 of 1 - Case No.: lO-L-0075
IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS ST. CLAIR COUNTY
MARK R. McCOY,
Defendants.
) ) ) ) ) ) ) ) ) )
Case No.: 10 L 75
Plaintiff,
vs.
CITY OF FAIRVIEW HEIGHTS, a
municipal corporation, JOSHUA ALEMOND, and AARON NYMAN,
APPEARANCE and JURY DEMAND
The undersigned, as attorneys, enters their appearance for the Defendants City of Fairview Heights, Joshua Alemond, and Aaron Nyman.
Defendants demand trial by jury.
I certify that a copy of the within instrument was served on all parties who have appeared and have not heretofore been found by the Court to be i default for failure to plead.
Hinshaw & Culbertson, LLP 521 West Main St., Suite 300 Belleville, IL 62222 Telephone: (618) 277-2400 Facsimile: (618) 277-1144
Page 1 of 2 - Case No.: lO-L-0075
STATE OF ILLINOIS )
) SS
COUNTY OF ST. CLAIR )
CERTIFICATE OF SERVICE
I, the undersigned, on oath state that I served the foregoing Appearance, and this Notice of Filing to the following person(s):
Mark R. McCoy
41 Grandview Drive Collinsville, Illinois 62234
by placing true and correct copies of the same in an envelope addressed as set forth above with sufficient postage, and by placing said envelope in the U.S. mail at 521 West Main Street,
Belleville, Illinois on!iftJ.Jlt.._, tr , 2010 at 0 _ bout the hour of 5:0 .m.
SUBSCRIBED and SWORN to before me on this II~day of hard, 2010.
otary Public
OFFICIAL SEAL
-, MARY JO MOORE
NOTARY PUBLIC· STATE OF ILLINOIS MY COMt.tSSlON EXPIRES:01114114
Re: McCoy v. City of Fairview Heights Case No.: 10-L-75
Dear Clerk of Court:
Sender's email: jabern@okgc.com www.okgc.com
Enclosed please find an original and one copy of the Defendants' Answer and Affirmative
Defenses to Plaintiffs Complaint and Notice of Filing regarding the above captioned case.
Please file same and return a copy to me in the self-addressed, stamped envelope enclosed.
Thank you in advance for your cooperation.
Very truly yours,
O'HALLORAN KOSO GEITNER & COOK, LLC
Enclosures /
cc: Mark R. McCoy (w/encl.)
IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS ST. CLAIR COUNTY
MARK R. McCOY,
Plaintiff,
) ) ) ) ) ) ) ) ) )
Case No.: 10 L 75
vs.
CITY OF FAIRVIEW HEIGHTS, a
municipal corporation, JOSHUA ALEMOND, and AARON NYMAN,
Defendants.
NOTICE OF FILING
To: Mark R. McCoy
41 Grandview Drive Collinsville, Illinois 62234
YOU ARE HEREBY NOTIFIED that on the 16th day of March, 2010, the undersigned sent by U.S. Mail to be filed with the Clerk of the above-named Court, City of Fairview Heights' Appearance, Answer and Affirmative Defenses to Plaintiffs' Complaint and this Notice of Filing, copies of which are hereby being served upon you.
CITY OF FAIRVIEW HEIGHTS, JOSHUA ALEMOND and AARON NYMAN
Hinshaw & Culbertson, LLP 521 West Main St., Suite 300 Belleville, IL 62222 Telephone: (618) 277-2700 Facsimile: (618) 277-1144
Page 1 of 2 - Case No.: 10-L-0075
STATE OF ILLINOIS
)
) SS )
COUNTY OF COOK
CERTIFICATE OF SERVICE
I, the undersigned, on oath state that I served the foregoing Defendants' Answer and Affirmative Defenses to Plaintiffs Complaint and this Notice of Filing to the following person(s):
Mark R. McCoy
41 Grandview Drive Collinsville, Illinois 62234
via U.S. Mail by placing true and correct copies of the same in an envelope addressed as set forth above, and by placing said envelope in the mailbox at 650 Dundee Road in Northbrook, Illinois
at or about the hour of5:00 p.m. on March 16, 201~ ~
SUBSCRIBED and SWORN to before me on this 16th day of March, 2010.
l SEAL" 4fL-f7L'-"""-=-...I----Il.'::....:::._~'--l---LF--I~~~ii_. R H OrON
Notary Public, State of Illinois
My Commission Expires Nov. 13, 2011
Page 2 of2 - Case No.: lO-L-007S
IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS ST. CLAIR COUNTY
MARKR. McCOY,
Plaintiff,
) ) ) ) ) ) ) ) ) )
Case No.: 10 L 75
vs.
CITY OF FAIRVIEW HEIGHTS, a
municipal corporation, JOSHUA ALEMOND, and AARON NYMAN,
Defendants.
DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT
Defendants, City of Fairview Heights, Joshua Alemond and Aaron Nyman, by its attorneys,
O'Halloran Kosoff Geitner & Cook, LLC and Hinshaw and Culbertson, LLP, for their answer
and affirmative defenses to the plaintiff's complaint, state as follows:
WILLFUL AND WANTON CONDUCT AGAINST DEFENDANT(S),
CITY OF FAIRVIEW HEIGHTS, ILLINOIS, PATROLMAN JOSHUA ALEMOND, AND PATROLMAN AARON NYMAN
1. That on February 17, 2009 at approximately 02: 11 am., the Plaintiff, was
traveling northbound in a 1995 Chevrolet pickup truck on Illinois Highway 159, an area within
the municipal boundaries of the Defendant, the City of Fairview Heights, located in the County
of St. Clair, State of Illinois.
ANSWER: Defendants admit the allegations of Paragraph 1.
2. That at the time of his travel, the Plaintiff competently controlled his vehicle in a
reasonable, safe, and responsible manner, posing no threat to the public at large by way of his
actions.
ANSWER: Defendants deny the allegations of Paragraph 2.
3. That at the time of his travel, the Plaintiff committed no act of violence against
Page 1 of19-CaseNo.: lO-L-007S
another individual, nor transgressed, trespassed, or in any other way interfered with the rights, liberties, freedoms, or property of another individual.
ANSWER: Defendants deny the allegations of Paragraph 3.
4. That at the time of his travel, the Plaintiff committed no criminal act cognizable
to the Common Law.
ANSWER: Defendants deny the allegations of Paragraph 4.
5. That at the time of his travel, the Plaintiff was entitled to the full exercise and
enjoyment of every Natural Right worthy of every free-born individual who is reasonable, rational, and conscionable; and was not exercising any acknowledged right, privilege, or benefit which requires the surrender of any Natural Right in exchange for such which are created, controlled, and regulated by any incorporeal, fictitious, or contrived political construct. ANSWER: Defendants state that Paragraph 5 contains legal conclusions to which no response is required. To the extent Paragraph 5 contain any factual allegations, Defendants deny same.
6. That the Defendant, the City of Fairview Heights, is a Corporate Municipality
organized and exercising Home Rule Powers authorized by the Constitution of the State of Illinois.
ANSWER: Defendants admit the allegations of Paragraph 6.
7. That the statutory authority for all lawful powers exercised by the Defendant, the
City of Fairview Heights, is found at 65 ILCS 51 et. seq. known as the ILLINOIS MUNICIPAL CODE.
ANSWER: Defendants state that Paragraph 7 contains legal conclusions to which no response is required. To the extent Paragraph 7 contain any factual allegations, Defendants deny same.
8. That the Defendant, the City of Fairview Heights, meets the definition of a
"Local Public Entity" as defined at 745 ILCS 10/1-206.
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ANSWER: Defendants admit the allegations of Paragraph 8.
9. That the Defendant, the City of Fairview Heights, maintains a "Police
Department" organized pursuant to powers authorized by statute at 65 ILCS 5111-1-1 known as
POLICE PROTECTION AND PUBLIC ORDER.
ANSWER: Defendants admit that the City of Fairview Heights maintains a police department. Defendants state that the remainder of Paragraph 9 contains legal conclusions to which no response is required.
10. That the Defendant, the City of Fairview Heights, exercises such power by and
through agents, employees, patrolmen, and officers; and is responsible and liable for the actions of said agents, employees, patrolmen, and officers when such actions are within their scope of employment.
ANSWER: Defendants state that Paragraph 10 contains legal conclusions to which no response is required. To the extent Paragraph 10 contain any factual allegations, Defendants deny same.
11. That the Defendant, the City of Fairview Heights, owed a duty of care to the
Plaintiff when its employees, Joshua Alemond and Aaron Nyman, also Defendants, acted within the scope of their employment by initiating contact with the Plaintiff on February 17,2009. ANSWER: Defendants admit only to those duties imposed upon them by law.
12. That the Defendant, Joshua Alemond, has not taken, nor has on file, a lawfully
administered oath or affirmation pursuant to 5 ILCS 255 known as the OATHS AND AFFIRMATIONS ACT, and is therefore not an "officer", except in name only.
ANSWER: Defendants state that Paragraph 12 contains legal conclusions to which no response is required. To the extent Paragraph 12 contain any factual allegations, Defendants deny same.
13. That the Defendant, Joshua Alemond, meets the definition of "Public Employee" as
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defmed at 745 ILCS 1011-207.
ANSWER: Defendants admit the allegations of Paragraph 13.
14. That the Defendant, Joshua Alemond, on February 17,2009, was in the employ
of the Defendant, the City of Fairview Heights, acting with the permission and knowledge of the Defendant, the City of Fairview Heights, to perform all duties and exercise all power within his scope of employment pursuant to the powers enumerated in the Constitution of the State of Illinois, the ILLINOIS MUNICIPAL CODE, thereby being precluded and prohibited from lawfully exercising any other power heretofore not mentioned.
ANSWER: Defendants state that Paragraph 14 contains legal conclusions to which no response is required. To the extent Paragraph 14 contain any factual allegations, Defendants deny same.
15. That the Defendant, Aaron Nyman, has not taken, nor has on file, a lawfully
administered oath or affirmation pursuant to 5 ILCS 255 known as the OATHS AND AFFIRMATIONS ACT, and is therefore not an "officer", except in name only.
ANSWER: Defendants state that Paragraph 15 contains legal conclusions to which no response is required. To the extent Paragraph 15 contain any factual allegations, Defendants deny same.
16. That the Defendant, Aaron Nyman, meets the definition of "Public Employee"
as defined at 745 ILCS 1011-207.
ANSWER: 17.
Defendants admit the allegations of Paragraph 16.
That the Defendant, Aaron Nyman, on February 17,2009, was in the
employ of the Defendant, the City of Fairview Heights, acting with the permission and knowledge of the City of Fairview Heights to perform all duties and exercise all power within his scope of employment pursuant to the' powers enumerated in the
Page 4 of 19 - Case No.: 10-L-007S
Constitution of the State of III i n 0 is, the ILLINOIS MUNICIPAL CODE, thereby being precluded and prohibited from lawfully exercising any other power heretofore not mentioned.
ANSWER: Defendants state that Paragraph 17 contains legal conclusions to which no response is required. To the extent Paragraph 17 contain any factual allegations, Defendants deny same.
18. That on February 17,2009, at approximately 02:11 am., the Plaintiff was
traveling northbound on Illinois Highway 159 in a Chevrolet pickup truck when a police cruiser owned and operated by the Defendant, the City of Fairview Heights, and driven by the Defendant, Joshua Alemond, while acting within his scope of employment did approach the Plaintiff, from the rear and thereupon activated the unit's overhead emergency lights under color oflaw and in the absence of any cognizable emergency.
ANSWER: Defendants admit the allegations of Paragraph 18 but deny the absence of any cognizable emergency.
19. That the Plaintiff, upon observing the emergency lights, was unable to observe
any markings on the vehicle which would signify it as a police cruiser, or identify the driver as a patrolman.
ANSWER: Defendants lack knowledge sufficient to form a belief as to the truth of the allegations of Paragraph 19, and therefore deny the same.
20. That the Plaintiff did hereupon exercise discretion, care, and caution by
maneuvering his vehicle towards the shoulder of the roadway in a safe and lawful manner in effort to make way for what he perceived to be an emergency vehicle seeking right-of-way. ANSWER: Defendants deny the allegations of Paragraph 20.
21. That the Defendant, Joshua Alemond, did thereupon proceed behind the Plaintiff
Page 5 of 19 - Case No.: 10-L-007S
instead of responding to the attempt by the Plaintiff to yield the right-of-way to his emergency signal.
ANSWER: Defendants admit that Officer Alemond proceeded behind Plaintiff. Defendants deny that Plaintiff was attempting to yield the right of way to Officer Alemond' s emergency signal.
22. That the Plaintiff, having maneuvered his vehicle in a safe and prudent manner,
posing no threat to the safety of the public at large, had no cause to believe he would be stopped for any crime, offense, or infraction, and was not a party to any emergency which would support such a vehicle following him.
ANSWER: Defendants deny the allegations of Paragraph 22.
23. That the Plaintiff, unable to identify the vehicle or the driver of the vehicle
behind him, was concerned for his safety, as well as the safety of other motorists, should he stop on the shoulder of the highway.
ANSWER: Defendants lack knowledge sufficient to form a belief as to the truth of the allegations of Paragraph 23, and therefore deny the same.
24. That the area of Illinois Highway 159 upon which the Plaintiff was traveling at
this time has no installed illumination devices and visibility is subject to ambient conditions. ANSWER: Defendants deny the allegations of Paragraph 24.
25. That the Plaintiff was under no lawful obligation to suspend his travels or
respond to the actions taken by the Defendant, Joshua Alemond, in activating overhead emergency lights absent positive identification of the vehicle and driver which was impossible under the circumstances at that time.
ANSWER: Defendants deny the allegations of Paragraph 25.
26. That after a period of time the Defendant, Joshua Alemond, did activate a siren.
Page 6 of 19 - Case No.: 10-L-0075
ANSWER: Defendants admit the allegations of Paragraph 26.
27. That the Plaintiff, upon hearing the siren, did thereby believe it more likely than
not that the vehicle behind him was some sort of police vehicle.
ANSWER: Defendants lack knowledge sufficient to form a belief as to the truth of the allegations of Paragraph 27, and therefore deny the same.
28. That the Plaintiff traveled Illinois Highway 159 to and from his place of
employment regularly, and was familiar with the its environs.
ANSWER: Defendants lack knowledge sufficient to form a belief as to the truth of the allegations of Paragraph 28, and therefore deny the same.
29. That the Plaintiff, relying upon his familiarity with the area, believed it was
unsafe to stop his vehicle on the shoulder of the highway given its width and the lack oflighting, and instead proceed towards a private drive, Donald Bailey Drive, of which he was familiar and which he knew to often be lighted.
ANSWER: Defendants lack knowledge sufficient to form a belief as to the truth of the allegations of Paragraph 29, and therefore deny the same.
30. That the Plaintiff felt it unreasonable and dangerous, for both himself and the
motoring public, to stop his vehicle where he believed the Defendant, Joshua Alemond, was indicating.
ANSWER: Defendants lack knowledge sufficient to form a belief as to the truth of the allegations of Paragraph 30, and therefore deny the same.
31. That the Plaintiff was within his rights and the law to proceed safely to a location
where he felt reasonably secure.
Page 7 of 19 - Case No.: lO-L-0075
ANSWER: Defendants deny the allegations of Paragraph 31.
32. That the Plaintiff, during his travel to Donald Bailey Drive, while being followed
by the Defendant, Joshua Alemond, maneuvered his vehicle in a safe and prudent manner, and in violation of no vehicular offenses and committing no criminal acts.
ANSWER: Defendants deny the allegations of Paragraph 32.
33. That the Plaintiff, upon arriving at Donald Bailey Drive did execute a turn onto
the drive and bring his vehicle to a stop in a safe and prudent manner under a street light. ANSWER: Defendants deny the allegations of Paragraph 33.
34. That the Plaintiff, during this time, was engaged in a mobile telephone
conversation with his wife while wearing a wireless headset with the telephone secured in a case clipped to his waistband.
ANSWER: Defendants lack knowledge sufficient to form a belief as to the truth of the allegations of Paragraph 34, and therefore deny the same.
35. That during this time the Defendant, Joshua Alemond, was actively
communicating with a dispatcher via police radio.
ANSWER: Defendants admit the allegations of Paragraph 35.
36. That during this time, the Defendant, Joshua Alemond, was aware of the
operation of a video/audio recording device installed in the police cruiser which is directed towards the front of the police cruiser and records both ambient sound as well as that which is broadcast/received via radio.
ANSWER: Defendants admit the allegations of Paragraph 36.
37. That during this time the Defendant, Joshua Alemond, in no way communicated
to the dispatcher that there was any situation which rose to the level of an emergency, indicated the commission of a felony, or any other threat to the public at-large.
Page 8 of 19 - Case No.: 10-L-007S
ANSWER: Defendants deny the allegations of Paragraph 37.
-38. That during this time the Defendant, Aaron Nyman, was on duty and responded
to the situation as communicated by the Defendant, Joshua Alemond, over the police radio by activating his overhead emergency lights and traveling towards the scene at Donald Bailey Drive.
ANSWER: Defendants admit the allegations of Paragraph 38.
39. That while traveling to Donald Bailey Drive the Defendant, Aaron Nyman, did
drive a police cruiser owned and operated by the Defendant, the City of Fairview Heights. ANSWER: Defendants admit the allegations of Paragraph 39.
40. That while traveling to Donald Bailey Drive the Defendant, Aaron Nyman, did
operate the police cruiser at speeds reaching 119 mph in violation of 625 ILCS 5/11-205 (c) (3).
ANSWER: 41.
Defendants deny the allegations of Paragraph 40.
That the Plaintiff, Mark R. McCoy, on February 17,2009 at approximately 02:11
am., had brought his 1998 Chevrolet pickup truck to a stop under a street light on Donald Bailey Drive with the Defendant, Joshua Alemond, parked behind him in a police cruiser owned and operated by the Defendant, the City of Fairview Heights, with the overhead emergency lights activated and no discernible or articulable justification for an unwarranted intrusion upon the Plaintiffs life, liberty, or property evident by an objective observation of the circumstances; giving rise to what, at that time had become, an unlawful and unconstitutional detainment lacking in merit, warrant, and probable cause.
ANSWER: Defendants deny the allegations of Paragraph 41.
42. That at said time and place, the Plaintiff did roll down his driver-side window in
order to confront whomever had attempted to detain him, in hopes of discovering the nature of the detainment.
Page 9 of 19 - Case No.: 10-L-0075
ANSWER: Defendants lack knowledge sufficient to form a belief as to the truth of the allegations of Paragraph 42, and therefore deny the same.
43. That the Defendant, Joshua Alemond, did not apprise the Plaintiff of the nature of
the detainment, but instead remained at the police cruiser with his department issued pistol trained upon the Plaintiff.
ANSWER: Defendants admit the allegations of Paragraph 43.
44. That the Plaintiff did peaceably attempt to discern the cause for the detainment
by asking the Defendant, Joshua Alemond, ifhe was under arrest by speaking clearly and loudly from his vehicle.
ANSWER: Defendants deny the allegations of Paragraph 44.
45. That the Defendant Joshua Alemond, fai I ed to apprise the Plaintiff of any cause
for his detainment but instead ordered him to exit the safety and protection of his vehicle at gunpoint and threat of death.
ANSWER: Defendants deny the allegations of Paragraph 45.
46. That the Plaintiff at no time exhibited any violent tendencies, made no threats,
possessed no weapon, appeared not impaired, nor otherwise committed a violent or unlawful act within the presence of the Defendant, Joshua Alemond.
ANSWER: Defendants deny the allegations of Paragraph 46.
47. That the Plaintiff, out of fear for his life, complied with the demands of the
Defendant, Joshua Alemond, and exited the safety of his vehicle with hands raised. ANSWER: Defendants deny the allegations of Paragraph 47.
48. That the Defendant, Joshua Alemond, did order the Plaintiff to step away from
his vehicle and proceed by walking backwards towards the Defendant, Joshua Alemond, and after some distance thereby ordered to assume a kneeling position with hands atop his head and
Page 10 of 19 - Case No.: 10-L-0075
facing away from the Defendant, Joshua Alemond, all the while training his weapon on the
Plaintiff.
ANSWER: Defendants admit the allegations of Paragraph 48.
49. That at this time the Defendant, Joshua Alemond, having been asked a number of
times by the Plaintiff whether he was under arrest, failed to respond, and instead had ordered the
Plaintiff to render himself vulnerable by proceeding under threat of death to a kneeling position
away from the safety of his vehicle with hands atop his head and no information or knowledge
as to why his life and liberty were in peril.
ANSWER: Defendants object to the term "at this time" as being undefined, and therefore deny the allegations of Paragraph 49.
50. That at this time, there had been no effort made by the Defendant, Joshua
Alemond, to ascertain the identity of the Plaintiff by asking either for his name or for other form
of identification.
ANSWER: Defendants object to the term "at this time" as being undefined, and therefore deny the allegations of Paragraph 50.
51. That at this time, there had been no request made of the Plaintiff by the
Defendant, Joshua Alemond, to produce any papers, proof, documentation, license, or any thing
required by law to be possessed or presented by the Plaintiff.
ANSWER: Defendants object to the term "at this time" as being undefined, and therefore deny the allegations of Paragraph 51.
52. That at this time, there had been no inquiry made of the Plaintiff as to any
possible impairment or defect, whether physical, mental, chemical, or otherwise, nor inspection
made thereof, by the Defendant, Joshua Alemond, to ascertain any perceived inability of the
Plaintiff to safely travel the roadways in his vehicle.
ANSWER: Defendants object to the term "at this time" as being undefined, and therefore deny the allegations of Paragraph 52.
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53. That at this time, the Defendant, Joshua Alemond, did not observe any action
made by the Plaintiff which would support a reasonable and articulable suspicion that the
Plaintiff was about to commit, was committing, or had committed a criminal act.
ANSWER: Defendants object to the term "at this time" as being undefined, and therefore deny the allegations of Paragraph 53.
54. That at this time, the Defendant, Joshua Alemond, did effect a warrantless arrest
of the Plaintiff.
ANSWER: Defendants object to the term "at this time" as being undefined, and therefore deny the allegations of Paragraph 54.
55. That during the warrantless arrest of the Plaintiff by the Defendant, Joshua
Alemond, he failed to inform the Plaintiff of the nature of the offense on which the arrest is
based in violation of 725 ILCS 511 03-1 (b).
ANSWER: Defendants deny the allegations of Paragraph 55.
56. That at this time the Defendant, Aaron Nyman, arrived at Donald Bailey Drive as
the Plaintiff was in a kneeling position with hands atop his head and facing away while the
Defendant, Joshua Alemond, had his weapon trained on the Plaintiff.
ANSWER: Defendants object to the term "at this time" as being undefined, and therefore deny the allegations of Paragraph 56.
57. That at this time the Plaintiff was unaware of the arrival and presence of the
Defendant, Aaron Nyman, due to his facing away from that direction in having assumed a
kneeling position with hands atop his head.
ANSWER: Defendants object to the term "at this time" as being undefined, and therefore deny
the allegations of Paragraph 57.
58. That on February 17,2009 at approximately 02: 11 am, the Plaintiff, Mark R.
McCoy, was placed under arrest by being forced from his vehicle at gunpoint while parked on a
private drive, named Donald Bailey Drive, by the Defendant, Joshua Alemond, and ordered to
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assume a kneeling position and facing away from the Defendant, Joshua Alemond, who was accompanied by the Defendant, Aaron Nyman, both acting with the scope of their employment with the Defendant, the City of Fairview Heights, Illinois.
ANSWER: Defendants admit the allegations of Paragraph 58.
59. That at said time and place, the Plaintiff, while kneeling in a neutral, submissive,
defenseless, and non-threatening position was taken to the ground by the Plaintiff, Joshua Alemond, and subsequently beaten about his head, face, and back as well as receiving an electric shock to the head by the combined efforts of the Defendant(s), Joshua Alemond and Aaron Nyman.
ANSWER: Defendants deny the allegations of Paragraph 59.
60. That at said time and place, and during the course of receiving being beaten about
the head, face, and back, the Defendant(s), Joshua Alemond and Aaron Nyman, attempted to issue a presumably lawful order for the Plaintiff to place his hands behind his back, while at the time the Plaintiff was incapable of understanding, responding to, or complying with such an order as he had suffered blows to the head and continued to be beaten during the issuance of such order while in fear for his life.
ANSWER: Defendants deny the allegations of Paragraph 60.
61. That at said time and place, the Defendant, Aaron Nyman, responded to the
Plaintiffs questions as to why he was stopped by saying he "had a warrant", but only after Plaintiff had sustained a beating, and never informing the Plaintiff that a warrant had been issued for his arrest and the nature of the offense specified in the warrant in violation of the 725 ILCS
51103-1(a).
ANSWER: Defendants deny the allegations of Paragraph 61.
62. That at said time and place, the Defendant, the City of Fairview Heights, Illinois,
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by and through its employees, Patrolman Joshua Alemond and Patrolman Aaron Nyman, also Defendants, was guilty of one or more of the following acts and/or omissions of willful and wanton conduct, as defined at 745 ILCS 1011-210:
A. Willfully and wantonly failed to prevent injury to the Plaintiff when
forcing him upon a concrete driveway in a manner which exposed the Plaintiff to bodily injury when the Defendant, Joshua Alemond, forced the Plaintiff forward and off balance.
B. Willfully and wantonly delivering a blow to the back of the head of the
Plaintiff while lying upon a concrete driveway when the Defendant, Aaron Nyman, dropped with his knee upon the back of the Plaintiff, forcing his unprotected face into the concrete driveway, under the force of the Defendant, Aaron Nyman's body weight dropping from a height.
C. Willfully and wantonly delivering several blows to the Plaintiff, by
repeatedly striking him in the back and head using knees and fists when the Defendant, Joshua Alemond, delivered such blows upon the Plaintiff, while he lay injured upon a concrete driveway after having sustained a blow to the head and face by the Defendant, Aaron Nyman.
D. Willfully and wantonly applying electric shock to the Plaintiff as he lay
bleeding and injured, having sustained a blow to the back and head, when Aaron Nyman applied a "Dry Stun" from a "Taser" owned by the Defendant, the City of Fairview Heights, Illinois and issued to the Defendant, Aaron Nyman, wherein the Defendant Aaron Nyman, placed the device against the back of the neck and at the base of the skull, then discharging electric current against the flesh of the Plaintiff.
E. Willfully and wantonly applying blows to the head of the Plaintiff as he
Page 14of19-CaseNo.: lO-L-0075
lay injured and bleeding, having sustained blows and electric shock, when the Defendant, Aaron Nyman, maintained pressure upon the injured areas by distributing his body weight to his knee resting upon said area, thereby driving already injured flesh into the concrete driveway surface.
F. Willfully and wantonly threatening the Plaintiff with further injury and
pain as he lay injured and bleeding having sustained blows and electric shock to the head and face, he lie convulsing from exposure to electric shock wherein the Defendant, Aaron Nyman, verbally warned the Plaintiff, to lie still else he be subjected to more tasering.
G. Willfully and wantonly inflicting pain and suffering upon the Plaintiff by
placing him unattended for a period of time in the back seat of a police cruiser while hand-cuffed after having sustained blows to the head and face, as well as electric shock to the head, being aware of the extent of injury inflicted, and withholding treatment when requested by the Plaintiff, when Joshua Alemond restrained the Plaintiff, in said cruiser and denied such treatment when so requested and further upon witnessing the Plaintiff bleeding from multiple cuts about the head and face.
H. Willfully and wantonly fabricated evidence, falsified a police report, ad
committed perjury when Joshua Alemond signed and filed a Non-Traffic Complaint 115419 which alleged a violation of law by the Plaintiff by way of his "knowingly resisting" the Defendant, Joshua Alemond, when the Defendant, Joshua Alemond issued such an order while, aided by Defendant Aaron Nyman, physically made the Plaintiff's ability to comply with such an order impossible by way of the Defendant(s) beating the Plaintiff, causing injury, and applying electric shock to his body during the issuance of the order.
Page 15 of 19 - Case No.: 10-L-007S
I. Willfully and wantonly facilitated the theft of the Plaintiffs Chevrolet
pickup truck by directing Walter's Towing to take said truck off of private property, Donald Bailey Drive, and thereby impound said truck at that facility and then demanding the Plaintiff to remit a fee to regain his property, all without lawful authority.
ANSWER: Defendants deny the allegations of Paragraph 62, inclusive of sub-paragraph A-I.
63. That as a direct and proximate result of one or more of the aforegoing acts and/or
omissions of willful and wanton conduct by the Defendant(s), the Plaintiff suffered cuts, contusions, bleeding, electric shock, convulsions, loss of consciousness, confusion, damaged teeth, and anxiety, as well as broken eyeglasses, broken cellular telephone, and broken Bluetooth headset, as well as deprivation of his private property for which he was forced to pay to have returned.
ANSWER: Defendants deny any wrongful act or omission at the time and place alleged, deny that any act or omission of defendants proximately caused damage to plaintiff and deny that plaintiff was injured in the manner, nature or to the extent alleged.
64. That as a direct and proximate result of one or more of the aforegoing acts or
omissions of willful and wanton conduct by the Defendant(s), the Plaintiff was injured, numerous parts of his body were injured; their functions impaired and their existing conditions aggravated, he has suffered and will in the further continue to suffer physical and mental pain and anguish; and his personal property was broken beyond repair, all to the Defendant's damage. ANSWER: Defendants deny any wrongful act or omission at the time and place alleged, deny that any act or omission of defendants proximately caused damage to plaintiff and deny that plaintiff was injured in the manner, nature or to the extent alleged.
WHEREFORE, Defendants, City of Fairview Heights, Joshua Alemond, and Aaron Nyman deny that they are liable to plaintiff, respectfully request that this Honorable Court enter
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an Order in their favor and against Plaintiff, dismissing Plaintiffs Complaint, with prejudice,
and for such other and further relief as this Court deems just and equitable.
AFFIRMA TIVE DEFENSES
Defendants, City of Fairview Heights, Joshua Alemond, and Aaron Nyman, in addition
to the denials and defenses set forth hereinabove this pleading, assert the additional affirmative
defenses to plaintiffs claims as follows:
First Affirmative Defense
Plaintiffs state law claims are barred by 745 ILCS 10/2-201.
Second Affirmative Defense
Plaintiff s state law claims are barred by 745 ILCS 10/2-202.
Third Affirmative Defense
Defendants had probable cause to arrest plaintiff.
Fourth Affirmative Defense
The use of force utilized by defendants was reasonable and necessary given plaintiffs failure to
comply with orders prior to and at the time of his lawful arrest, pursuant to 720 ILCS 517-5,
which provides that
"a peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to effectuate the arrest ... " 720 ILCS 517-5(a).
Fifth Affirmative Defense
That the alleged conduct of defendants was legally justified given the conduct of the plaintiff
and the circumstances surrounding the incident.
Sixth Affirmative Defense
Plaintiff s state law claims are barred by 745 ILCS 10/2-109 ofthe Illinois Tort Immunity Act in
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that the City of Fairview Heights is immune from suit as local public entities cannot be held liable for an injury resulting from an act or omission of its employees where the employee is not liable.
Seventh Affirmative Defense
Any conduct alleged to have been committed by the officers was a result of the provocation on the part of plaintiff.
Eighth Affirmative Defense
The officers' actions were in self-defense in response to plaintiff s conduct.
Ninth Affirmative Defense
Defendants used only the amount of force necessary and reasonable to effectuate a lawful arrest of the plaintiff at the time of plaintiff s arrest and in light of the circumstances surrounding the
arrest.
Tenth Affirmative Defense
Plaintiff s state law claims are barred by the doctrine of public official's immunity.
Eleventh Affirmative Defense
If the allegations of the complaint are true, plaintiff s contributory negligence was a proximate cause of the injuries and damages alleged, and his state law claims are barred if plaintiff s contributory negligence is greater than 50%.
Twelfth Affirmative Defense
If the allegations contained in the complaint are true, plaintiffs comparative fault reduces any award of damages to plaintiff in the state law claims, by a proportional amount.
Thirteenth Affirmative Defense
Defendants' conduct was justified because plaintiff voluntarily participated in any alleged altercation.
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Fourteenth Affirmative Defense
The complaint fails to state a cause of action.
WHEREFORE, Defendants, City of Fairview Heights, Joshua Alemond, and Aaron
Nyman respectfully request that this Honorable Court enter an Order in their favor and against
Plaintiff, dismissing Plaintiff s Complaint, with prejudice, and for such other and further relief
as this Court deems just and equitable.
Respectfully submitted,
City of Fairview Heights, Joshua Alemond, and Aaron Ny