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January 29, 1965


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's trousers.

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 Cir. 1961).

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 ...

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