Man Arrested in Attempt to Duck Service Can Sue

     CHICAGO (CN) – Police officers cannot dismiss a lawsuit that claims they used excessive force to arrest a man clad only in underwear as he tried to evade process servers on his property, a federal judge ruled.
     In July 2010, two process servers, Bernard and Sandra Brennan, came to Wesley Jasinski’s house to serve the man with a complaint and summons filed by Cornelia Carpet Cleaners.
     After Sandra knocked, Jasinski asked through the closed door what she wanted. Sandra said she was looking for Jasinski’s wife, who was not at home.
     Bernard then tried to forcibly open the door a few times, and he and Jasinski argued through the closed door. Bernard allegedly told Jasinski that he was a police officer although he was actually retired.
     Jasinski called his lawyer, who advised him to tell the process servers he would call the police if they did not leave immediately. When he returned to the door, he could not see the process servers.
     Apparently the process servers had called the police to report that Jasinski had allegedly threatened to shoot them if they did not get off his property.
     When Jasinski opened his door later to collect the mail, wearing only underwear and a T-shirt, two officers ordered him to get down on his knees and handcuffed him. The police allegedly pushed Jasinski’s face to the ground and dragged him across the driveway in front of his two children. At the police station, Jasinski was charged with disorderly conduct.
     Jasinski brought a lawsuit against his arresting officers and the Brennans. The police officers filed a motion to dismiss, which U.S. District Judge Elaine Bucklo granted in part last week.
     “Jasinski could have, perhaps, avoided this situation by accepting service of process at an earlier time and before the situation became contentious,” Bucklo wrote.
     But “there is nothing on the face of the complaint to indicate that Jasinski did anything other than cooperate with the defendant officers,” she added.
     Though “arresting someone without probable cause as he steps out of his home in his underwear to check his mail may be a constitutional violation,” the court found that “the lack of precedent on this issue counsels in favor of finding qualified immunity for the officers.”
     As such, Jasinski cannot pursue unlawful arrest claims.
     Bucklo also dismissed the claims of emotional distress because neither officer “engaged in ‘truly extreme and outrageous’ conduct.”
     Jasinski can move forward with his claims of excessive force, however, since “it appears that the defendants’ use of force was out of proportion to any danger that Jasinski posed to the officers or to anyone else.”

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