Castle, Senior Circuit Judge, and Kiley and Pell, Circuit Judges.
This is an appeal from a jury verdict and judgment against the plaintiff and for the City of Chicago in a suit in which Ries, the plaintiff, sought recovery for personal injuries allegedly received by him in Lincoln Park, during the period of the Democratic National Convention in 1968.
The second amended complaint, upon which the trial issues were ultimately formed, contained four counts. The first two counts proceeded on civil rights theories. The last two counts sought recovery under Illinois law, being based respectively on alleged intentional and alleged negligent acts. Defendants, in addition to the City of Chicago, were two supervisory Chicago police officials and unknown Chicago police officers designated as "John Doe."
The district court dismissed as to all defendants except Chicago, which remained as a defendant as to Count III only, on which count the case was tried.
Ries' first contention on appeal is that the district court erred in dismissing the civil rights counts as to the City of Chicago.
For this purpose, it is sufficient to note that Ries claimed he was assaulted by a city policeman but was unable to identify his assailant because of the prevailing darkness and the wearing of a gas mask and helmet by the officer. Some 200 photographs of policemen involved in the operation in question were made available to Ries by the city but viewing by him did not produce an identification.
The district court held that Chicago, a municipal corporation, was not liable in damages for the conduct of its agents under either 42 U.S.C. §§ 1983 or 1986, relying on Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Ries ingeniously argues that despite the rather clear language of Monroe v. Pape, it is not applicable here as there the wrongdoing police officers were identifiable defendants against whom the plaintiff had effective recourse. Here, he contends, since the policemen could not be identified, Ries was denied a federal remedy and since under Illinois law, a municipality is not immune from liability for tortious acts of police officers, he should be entitled to proceed in a civil rights action pursuant to 42 U.S.C. § 1988.*fn1
We cannot agree. Our reading of Monroe v. Pape seems to leave no question that the congressional intent was to exclude municipalities from liability under the Civil Rights Act.
In Brown v. Town of Caliente, 392 F.2d 546 (9th Cir. 1968), the court considered but rejected the contention that since sovereign immunity had been abolished in Nevada, the bar to action against a municipality established by Monroe v. Pape no longer was viable in cases arising from that state. The court pointed out that the Ninth Circuit as well as other circuits including this court (United States ex rel. Lee v. People of State of Illinois, 343 F.2d 120 (7th Cir. 1965)) had followed the holding of Monroe v. Pape.
Our attention has been directed to a recent decision to the contrary in the District of Columbia Circuit, Carter v. Carlson, 144 U.S. App. D.C. 388, 447 F.2d 358 (D.C.Cir. 1971). The District of Columbia Court conceded that the language in Monroe would seem to preclude a suit against the municipality under § 1983. That court, however, would limit the holding of Monroe to a suit for damages against a municipality which had been clothed in immunity by its parent state. The court finds that the intent of Congress was not to create municipal immunity but to defer to the immunity that existed under local common law. Accordingly, the court found that where a local law had abolished or narrowed the scope of municipal immunity, the scope of immunity under § 1983 should follow the local rule. The court found additional support under 42 U.S.C. § 1988.
However, it is to be noted that the persuasive effect of Carter, insofar as the present case is concerned, is considerably weakened in that the Carter court rested its decision on a second ground, namely that Congress could have had no doubts about its power to impose liability on the District of Columbia and that the considerations that led the Monroe court to exclude ordinary municipalities would have no application to the District.
The test here seems to us relatively simple. It is not whether the Congress in 1871 would have included a municipality within the definition of "person" if at the time municipalities generally had not had immunity under the common law of states but rather the test is what Congress meant to do at that time irrespective of the reasons leading to that action. What Congress meant to do, it seems clear from the exposition in Monroe, was to legislate that "person" did not include a municipality.
As reflected by other portions of the Carter opinion the development of the common law calls into play the power of courts to reflect changing philosophies and concepts governing human conduct. A statute, however, in the absence of an integrated flexibility freezes the meaning of the legislative body as of the time of passage. Changes therein should be accomplished by the legislature. Interpretation, but not the rewriting of statutes, is the province of the courts. Statutory construction should not be the handmaiden of legislative amendment.
We are not convinced that the policy arguments in any event are all one-sided. If a city is to be subject to § 1983 liability when a police officer cannot be identified, as suggested by plaintiff, it is not unreasonable to think that the lure of a financially responsible defendant might tend to lessen the number of identifications. Also, the fact that the city might be liable under § 1983 might well be accompanied by a lessening of the feeling of individual responsibility on the part of officers who would be aware that they were no longer the prime target in the event of violation of civil rights. However, we do not need to concern ourselves with the policy arguments pro or con as the interpretation of the particular statute has already been accorded finality. Monroe v. Pape, supra.
We do not decide the matter because of any policy belief that a city should have legislative immunity but simply because of our opinion that they do have such immunity under this particular statute. Nor have we decided the point on the basis that there is much in the record to indicate that the same result would have been reached if the case had also been submitted under the civil rights counts.
Ries' remaining contentions pertain to claimed trial errors with regard to instructions and failure to direct a verdict on liability for the plaintiff or in the alternative to grant judgment n. o. v. For consideration of these claims, it is necessary we turn in some greater detail to the factual situation involved.
Lincoln Park is a large, wooded recreational area immediately north of Chicago's near north side and bounded on the east by the drive along Lake Michigan. A large number of people had assembled in the park on Saturday and Sunday, August 24 and 25, 1968. On the following Monday evening, the number was estimated at from 3500 to 4000 people. There was no contention that the assemblage was that of people using the recreational facilities of the park in the normal manner.
There was an eleven o'clock curfew applicable to this park pursuant to ordinance.*fn2 On both Saturday and Sunday night there had been a sweep or clearing of the park. Some injuries had occurred on Sunday night and there had been arrests on that night. A planning meeting was held at police headquarters with regard to the anticipated situation on Monday evening. There were approximately 400 police immediately available for the park and surrounding area plus some 80 special Task Force police with the usual possibility of emergency call for police from other parts of the city.
In addition to the police meeting on Monday, there was also a meeting of interested clergymen. Ries, who at that time was a student at McCormick Theological Seminary, attended the meeting. It was decided that the clergy should try to reduce the mounting hostilities in the park by circulating through the park, passing out leaflets. It was testified that the thought was that the park could be cleared without confrontation.
At 10 p.m., at a time when there was growing tension in the park and at a time when if police officers or police vehicles went any place near the crowd they became the target of missiles, some 50 or 60 clergymen and seminarians went into the park in groups of five. According to the evidence, they wore clerical collars and white arm bands bearing a black cross. This was true of Ries. The leaflet which was passed out apparently anticipated difficulty because in addition to specifying "Emergency Crash Pads" at various churches in the area, the leaflet specified the location of a first aid center and legal aid and also a telephone number for bail bond. The police over loudspeakers began to announce the closing of the park about 10:30 p.m. At 11:00 p.m., pursuant to an earlier agreement among themselves, about half of the clerical group came to the edge of the park to confer as to what they had seen and heard and to decide what to do next. Thereafter plaintiff Ries and two other seminarians reentered the park together but not in a group of five. A barricade of considerable size had been built by the crowd near a statue of Garibaldi, composed of benches, tables, trash cans and the like, which incorporated the statue as a part thereof.
Ries himself testified that the mood of the crowd after 11 o'clock was tense. He saw the barricade and estimated that there were approximately 2000 people in the immediate area. The people in the crowd picked up anything that they could lay their hands on and threw in the direction of the police. Ries and a fellow seminarian decided "we should stay between the crowd and the police." Periodically they turned around to see what was happening with the police. There were some lights but basically the area was dark. A line of police was formed and the command was given to use gas to avoid direct confrontation. Ries stated that he knew a provocative confrontation would take place but claimed that he was attempting to urge the people to leave the park and was holding his arms up for that purpose. He saw "a lot of people throw missiles toward the Task Force." These were thrown over his head and he admitted that it would have been a prudent limitation on the presence of the ministry not to be between people throwing things at the police and the police. The overall situation is aptly described in the closing argument of one of Ries' counsel:
"So what did they [the clerical group] see when they got there around 10:00 o'clock? We have had varying testimony but, again, there is really no dispute. It was an unruly madhouse, a mad, hostile crowd. It is hard to describe; hard to describe an entire crowd. Some people were there having fun; some people were there bent on hurting police. There were all sorts of people there. They all together formed a mob. There is no question. Had they not ...