of racial disorder and the possibility of attacks upon negroes or
other persons, they are under an affirmative duty to take
reasonable measures to protect the personal safety of such
persons in the community. Their failure to perform this duty
would constitute both a negligent omission and a denial of equal
protection of the laws. Accordingly, an unreasonable omission of
this nature would be actionable under section 1983.
The instant complaint poses the possibility of such a negligent
omission. Yet, the complaint is framed in terms of conspiracy.
And, on two occasions the Court of Appeals for the Seventh
Circuit has found that an action for civil conspiracy cannot be
maintained under section 1983. Jennings v. Nester, 217 F.2d 153
(7th Cir. 1955); Eaton v. Bibb, 217 F.2d 446 (7th Cir. 1954).
Both cases involved assertions of a deprivation of due process
resulting from a conspiracy. In Jennings v. Nester, the Court
stated, "Section 1983 does not mention conspiracy, while section
1985 does. Therefore, the Act creates a cause of action for a
conspiracy to deny equal protection, but not for a conspiracy to
deny due process." 217 F.2d at 154. The Court reiterated this
reasoning in Eaton v. Bibb. See 217 F.2d at 449.
It should be noted, however, that these cases were decided
before section 1983 was given a broad construction in Monroe v.
Pape, supra. While these cases stand for the proposition that
section 1983 may not support an action for conspiracy, the
proposition remains that the acts of individual conspirators
resulting in the consummation of an alleged conspiracy, can give
rise to individual liability under this section. Moreover,
section 1983 has been interpreted to support actions against
individuals for a denial of equal protection of the laws. See,
e.g., Lee v. Hodges, 321 F.2d 480, 486 (4th Cir. 1963); Moss v.
Hornig, 314 F.2d 89, 92 (2nd Cir. 1963); Adams v. City of Park
Ridge, 293 F.2d 585, 589-590 (7th Cir. 1961). Logically, this
individual liability can be carried a step further and applied to
the situation where two or more persons act jointly or in concert
so as to deprive a person of equal protection of the laws. Such
persons can properly be regarded as joint tortfeasors. Hoffman v.
Halden, 268 F.2d 280, 292-293 (9th Cir. 1959). Since a federal
court is required to take cognizance of any possible theory of
recovery, it is possible, therefore, that the defendants may be
liable as joint tortfeasors in the instant action.
For the reasons previously stated, however, plaintiff has also
not alleged facts sufficient to support an action under section
1983. The complaint simply states that the defendants had notice
of the daily presence of negroes in Cicero and the possibility of
racial disorder. It further alleges that the defendants neglected
to prevent or to aid in preventing the attack on Jerome Huey.
These allegations are merely conclusory. The complaint does not
allege any specific acts or omissions by defendants, any causal
connection between such acts or omissions and the deprivations
suffered by Huey, or that the alleged acts or omissions were
unreasonable in light of the circumstances. Without such minimum
factual allegations the complaint cannot be sustained.
The defendants also raise the question of their immunity from
tort liability under the Civil Rights Act. Public employees in
Illinois are not liable for failure to provide adequate police
protection and for failure to prevent the commission of crimes.
Ill.Ann.Stat. ch. 85, § 4-102 (Smith-Hurd), 1966. The defendants
contend that the cause instituted against them cannot be
maintained in contravention of this statutory immunity.
An act of Congress supersedes any state statute or common law
doctrine with which it is in conflict and the language of the
Civil Rights Act is so broad as to suggest that it was intended
to usurp all state common law and statutory immunities.
Nevertheless, the federal courts have recognized the immunity of
certain state officials. For
instance, it has been held that state legislative and judicial
officials are immune from suit under the Civil Rights Act. See
Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288
(1967); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed.
1019 (1951); Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), cert.
denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967);
Stift v. Lynch, 267 F.2d 237 (7th Cir. 1959); Kenny v. Fox,
232 F.2d 288 (6th Cir.), cert. denied, 352 U.S. 855, 77 S.Ct. 84, 1
L.Ed.2d 66 (1956). See, also, Note, 68 Harv.L.Rev. 1229 (1959).
Certainly, these instances in which official immunity has been
held to apply under the Act do not support the recognition of an
immunity of the nature which defendants here seek. See Pierson v.
Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Comment,
1967 Duke L.Rev. 741, 772-776, 797-805 (1967).
Moreover, the conclusion that public officials are always
immune from suit for failure to provide adequate police
protection would be totally inconsistent with the language and
purpose of the Civil Rights Act. The legislative history of the
Act discloses that it was directed at the maladministration,
neglect, and disregard of laws by state and local officials. The
purpose of the Act was to provide a federal remedy for the
deprivation of federally guaranteed rights. To hold that public
employees enjoy an immunity under the Civil Rights Act similar to
that which they may enjoy under state law would largely frustrate
that purpose. Cf. Jobson v. Henne, 355 F.2d 129, 135 (2d Cir.
1966). We conclude, therefore, that the defendants are not
necessarily immune from suit under the Civil Rights Act.
The Statute of Limitations
The defendants contend that the second count, seeking recovery
under 42 U.S.C. § 1986, should be dismissed because the suit was
not commenced within a year of the incident which resulted in
Jerome Huey's death. Section 1986 provides a cause of action for
the benefit of the next of kin of any person killed or injured as
a result of a civil conspiracy mentioned in section 1985 of the
Civil Rights Act. Such an action may be brought against any
person having knowledge of the conspiracy who neglects to prevent
or aid in the prevention of the wrong conspired to be done.
Section 1986 specifically provides, however, that such a suit
must be brought within one year after the accrual of the cause of
Jerome Huey was beaten on May 25, 1966. He died four days later
on May 29, 1966. This complaint was filed on May 29, 1967.
Whether the second count is barred turns, therefore, on the
question of whether the one year period commenced on the date of
the assault or on the date of death.
The defendants contend that the case of Hoffman v. Halden,
268 F.2d 280 (9th Cir. 1959) should control. In the Hoffman case the
court adopted the rule, frequently applied in anti-trust cases,
that an action for civil conspiracy accrues on the date of the
overt act alleged to have caused damage. The defendants assert
that this is the date of the assault.
Although the Hoffman case involved a civil conspiracy action
under the Civil Rights Act, it is distinguishable from the
instant action on two grounds. First, it did not involve a death
action. Second, the Court did not specifically consider the
applicability of the one year limitation contained in section
1986. Moreover, in Monroe v. Pape the Supreme Court indicated
that the Civil Rights Act should be construed in accordance with
the general principles of tort liability. See 365 U.S. at 187, 81
S.Ct. 473. It would seem, therefore, that the Hoffman case is
unpersuasive, and that it is more appropriate to give section
1986 a construction consistent with that usually given wrongful
death acts rather than a construction similar to that given the
A majority of courts have held that a death action accrues on
the date of death and that the statute of limitations runs only
from that date. See, e.g., Frankel v. Styer, 209 F. Supp. 509
(E.D.Penn. 1962); De Hart v. Ohio Fuel Gas Co., 84 Ohio App. 62,
85 N.E.2d 586 (1948); Bruns v. Welte, 126 Ill.App. 541 (4th Dist.
1905). See, also, Prosser, Torts § 121 (3d ed. 1964). Applying
this rule to the instant suit the date of Huey's death would be
the date on which the one year limitation commenced to run. Hence
this suit was filed within one year of the accrual of the cause
Nevertheless, the second count must also be dismissed. Section
1986 is derivative in nature. It provides a remedy only for
injuries resulting from a conspiracy mentioned in section 1985 of
the Civil Rights Act. Since the plaintiff has not alleged facts
sufficient to establish an action under section 1985, it follows
that a derivative action under section 1986, premised on the same
insufficient conclusory allegations, cannot be sustained.
For the foregoing reasons, the plaintiff's complaint is
insufficient to state a claim under the Civil Rights Act,
42 U.S.C. § 1983, 1985, 1986.
An appropriate order will be entered.
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