New Athens business owner goes after police in suit

Kaskaskia River Marina and Campgrounds, Ervin Smith, Cheryl Smith, Ervin Smith, Jr., and Chris Koch filed suit in St. Clair County Circuit Court June 27 against New Athens, its police department and an officer for being maced during a false arrest.

The plaintiffs are seeking injunctive relief, monetary damages, attorney’s fees and costs and rightful compensation for unlawful First Amendment retaliation, state law retaliatory discharge, assault and battery, tortious interference with a business employment expectancy, unlawful taking without just compensation, false imprisonment, defamation, excessive force and violations of their civil rights.

According to the complaint, Ervin Sr. and Jr. along with Koch were unlawfully arrested by New Athens officer Michael Kemp on Sept. 7, 2003. During the arrest they were allegedly maced, as were patrons at the marina restaurant.

The plaintiffs claim they made a report to the Illinois State Police regarding Kemp’s actions using the mace while making the arrest.

“Kemp’s use of mace, placing handcuffs too tight, were malicious, and intentional in his efforts to harm and harass the plaintiffs for the sole reason to inflict injury,” the complaint states.

Prior to their arrest, police issued tickets and closed down the marina on June 21, 2003, without probable cause or justification, and again on July 13, 2003, according to the complaint.

“Police Chief Michael Smith on June 19, 2003, threatened plaintiffs with shutting down their business permanently due to Ervin Smith’s big mouth, a veiled reference to his complaints to New Athens Mayor Briethaupt and the Illinois State Police about police misconduct,” the complaint states.

Cheryl Smith claims she told Chief Smith that his assertion of numerous problems at the marina were unfounded and were based upon incidents at a public parking lot. She claims Chief Smith threatened criminal prosecution.

The suit claims that the plaintiffs have opposing political affiliations.

According to the complaint, Chief Smith’s references to criminal prosecution in front of employees damaged the plaintiffs’ reputations as people of good moral character and as law-abiding citizens.

Represented by John Pawloski of St. Louis, the plaintiffs are seeking compensatory damages in excess of $75,000 and punitive damages in excess of $75,000 plus all costs of the suit.

05 L 374 (20th Circuit)