The opinion of the court was delivered by: Will, District Judge.
Plaintiff brings this action under the Civil Rights Act,
42 U.S.C. § 1983, seeking the recovery of damages for an illegal
search of his person.
Defendant is an officer of the Chicago Police Department. Early
on the morning of August 21, 1961, plaintiff, his wife and
another couple were walking in the vicinity of 39th Street and
Cottage Grove Avenue in the city of Chicago. Officer Knazze, and
his partner, Officer Frawley, having been informed that
plaintiff's wife was carrying a concealed weapon, stopped the two
couples on the street. The weapon, concealed by newspapers, was
in the possession of plaintiff's wife and was surrendered to
Officer Knazze. Officer Frawley approached the plaintiff who
attempted to run away, but later stopped. Frawley searched the
plaintiff and found no weapon. As Frawley proceeded to search the
second man in the group, Officer Knazze decided to make a more
thorough search of the plaintiff. This second search yielded a
package of heroin which had been concealed in the fly of
Plaintiff was then taken into custody and charged with the
unlawful possession of narcotic drugs. He was subsequently
indicted for this offense.
Upon trial, Bowens moved to suppress the package of heroin
found in his trousers. The trial judge, after a hearing on the
motion, allowed the package to be admitted in evidence. On the
basis of this evidence, plaintiff was convicted of the offense
charged in the indictment.
Bowens appealed the judgment of conviction to the Supreme Court
of Illinois, which reversed and vacated the conviction, holding
that the heroin was obtained in an illegal search and that the
trial judge erred in admitting it in evidence. People v. Bowen
(sic), 29 Ill.2d 349, 194 N.E.2d 316 (1963). The court determined
that the initial search by Officer Frawley was reasonable and
lawful. However, since the officer had determined, to his
satisfaction, that Bowens was unarmed, the subsequent and more
thorough search by Officer Knazze was held to be unlawful.
Inasmuch as the heroin was found in the second search, its use in
evidence was proscribed. In reaching this conclusion, the court
made no reference to prior decisions and it appears that the
question of the lawfulness of a "double search" was before the
Illinois court for the first time.
The defendant has filed a motion to dismiss the instant
complaint, contending that it does not state a cause of action
under § 1983. Responding to this motion, plaintiff urges only
that each and every time a search is determined to be unlawful,
the person searched has a cause of action under the Civil Rights
Act. While § 1983 is written with broad strokes, we cannot
conclude that it should be so automatically and comprehensively
construed. An examination of the decisions of the Supreme Court
and lower federal courts leads to the conclusion that one
essential requirement of an action under § 1983 is that the
plaintiff show facts which indicate that the defendant, at the
time he acted, knew or as a reasonable man should have known that
his acts were ones which would deprive the plaintiff of his
constitutional rights or might lead to that
result. The basis for this conclusion is set out below.
Plaintiff points to the decision of the Supreme Court in Monroe
v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) to
support his contention that an illegal search is automatically
actionable under § 1983. There is no doubt that the prohibitions
of the Fourth Amendment are applicable to officials acting under
color of state law. It is also clear that, after Monroe v. Pape,
it is not necessary to allege that the defendant acted with the
specific purpose and intent of depriving one of a federal civil
right. However, as the Seventh Circuit has pointed out, when
considering fact situations to which the Civil Rights Act
applies, Monroe must be read in light of its peculiar facts.
Phillips v. Nash, 311 F.2d 513, 515 (7 Cir. 1962). See also,
Beauregard v. Wingard, 230 F. Supp. 167, 174 (S.D.Cal. 1964).
The problem of applying language in Monroe to determine the
existence of a cause of action under § 1983 stems initially from
the Supreme Court's statement that the statute "should be read
against the background of tort liability that makes a man
responsible for the natural consequences of his actions". 365
U.S. at 187, 81 S.Ct. at 484. The early reaction to this
statement appears to have been directed toward the possibility
that the Court intended to indicate that § 1983 provided a
federal remedy for all torts where the alleged tortfeasor acted
under color of state law. See Hardwick v. Hurley, 289 F.2d 529 (7
Shortly after Hardwick, the Court of Appeals for the Ninth
Circuit considered the same problem. Cohen v. Norris, 300 F.2d 24
(9 Cir. 1962). Noting the discussion in Hardwick, the court
stated that, in its view
"the quoted language from Monroe is not susceptible
of the broad reading which held misgivings for the
court in Hardwick. The court in Monroe was dealing
with the necessity of alleging a specific intent to
encroach upon federal rights. The allegations being
dealt with were those which must be stated
in a complaint, not those which might be
stated in an answer. The statement in Monroe * * *
suggests that there may well be defenses, such as
self defense and unforseeability due to defects in a
warrant, or by reason of other circumstances." 300
F.2d at 29.
Monroe v. Pape thus did no more than eliminate the requirement of
pleading specific intent.
In order for the Civil Rights Act to apply, the acts complained
of must result in a deprivation of rights secured by the
Constitution. Under the general principles of tort liability, it
is sufficient that a reasonable man would have foreseen this
result. However, a subsequent determination that the officer's
conduct resulted in a deprivation of constitutional rights does
not mean that the result was foreseeable and that the officer's
conduct was therefore tortious.
The Civil Rights Act created a new type of tort: the invasion,
under color of law, of a citizen's constitutional rights. The
test of tortious conduct in an ordinary tort case is, as a
general rule, whether at the time of the incident the defendant
was negligent, whether he failed to act as a reasonably prudent
man. In such cases the judgment of negligence is based on a
standard of behavior left to the determination of the community.
The reasonable man is "a personification of a community ideal of
reasonable behavior, determined by the jury's social judgment".
Prosser, Handbook of the Law of Torts (2d Ed.), § 31
In ordinary tort litigation, we allow a jury to find that a
defendant committed a tort when, looking back to the event, it
finds that the defendant acted unreasonably. A defendant may be
found negligent on the basis of a determination that the conduct
questioned in the civil suit violated a statute or ordinance
(e.g., that the defendant was exceeding the speed limit). These
judgments pose no problem because they are merely the application
of general ...