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December 23, 1971


The opinion of the court was delivered by: Will, District Judge.


This diversity jurisdiction action charges the defendants with the tort of malicious prosecution and arises indirectly from the civil disturbances at the time of the 1968 Democratic National Convention that occurred in Lincoln Park in Chicago on the night and morning of August 26 and 27, 1968. The plaintiff is a police officer who was suspended by the Chicago Police Department and indicted by a federal grand jury for his alleged conduct in those disturbances. The defendants include Newsweek, Inc., a national weekly news magazine, Hal Bruno, News Editor of Newsweek at the time of the occurrences involved herein, and James C. Jones, Detroit Bureau Chief for Newsweek who was also in Chicago to cover the convention. These defendants will hereinafter be referred to collectively as the Newsweek defendants. The remaining two defendants, Stuart Schulman and his wife, Rochelle, were also in Lincoln Park at the time in question and allegedly were involved in a physical and verbal altercation with the plaintiff.

The thrust of the plaintiff's complaint is that the Newsweek defendants falsely and maliciously complained by telegram to the Superintendent of Police of the City of Chicago that the plaintiff had assaulted certain Newsweek personnel and falsely and maliciously gave untrue statements to the same effect to the Internal Investigation Division of the Chicago Police Department and to various federal officials. These statements, plaintiff alleges, were given by the defendants who knew of their false content for the purpose of instituting a criminal prosecution of plaintiff for which there was no probable cause. The allegations against the Schulmans are of a similar, though not identical nature. The plaintiff alleges that, as a proximate result of such statements and charges, he was suspended from his duties as a Chicago Police Officer for a period of nearly one year and was indicted by a federal grand jury, which indictment was subsequently dismissed by the United States Attorney upon his own motion. All defendants presently move for summary judgment contending that no genuine material issue of fact exists as to certain elements necessary to be proven in a suit for malicious prosecution and that the plaintiff's suit must fail as a matter of law.

It is appropriate at this point to review the proceedings in this litigation to date. All the defendants have previously filed motions for summary judgment. In the memorandum opinion accompanying the denial of these motions, the Court discussed the six essential elements which a plaintiff must prove in order to sustain a suit for malicious prosecution and noted that if the plaintiff failed to establish any one element, his suit as a whole must fail. Freides v. Sani-Mode Manufacturing Co., 33 Ill.2d 291, 211 N.E.2d 286 (1965). We concluded that, at the time of the motions, the record before the Court indicated either that a material issue of fact existed as to certain elements of the suit or that the record was not so complete concerning several issues as to facilitate ruling on other elements of the suit. Although the defendants had filed numerous affidavits, the plaintiff had not filed anything other than an affidavit by his attorney that more time was needed for discovery before he could reply to the affidavits of the defendants. We believed that the defendants' motions for summary judgment would not be appropriate until the plaintiff was allowed the time for discovery that he claimed to need. We thus denied the motions for summary judgment, granted the plaintiff an extended period of time for further discovery, and granted the defendants leave to file renewed motions for summary judgment should they later believe such action appropriate. Discovery has now been completed and the motions have been resubmitted based upon a record significantly more complete than on the prior occasion.


One of the elements which must be proved in a suit for malicious prosecution is that of legal causation: the plaintiff must prove that an original criminal or civil judicial proceeding was caused to be initiated by the present defendants against the plaintiff who was the defendant in the original proceedings. Our previous ruling indicated that the federal criminal indictment is the only prosecution at issue in the instant action because the police board inquiry, even if presumed to be a quasi-criminal prosecution, resulted in a finding of guilty against Patrolman Andersen. That inquiry failed to satisfy the requisite for a malicious prosecution suit that the prior criminal action must have terminated in favor of the defendant and cannot, therefore, be a basis for the plaintiff's suit herein. In support of their motions for summary judgment, the defendants assert that the uncontroverted evidence now in the record before the Court establishes that the defendants did not initiate the grand jury proceedings which ultimately led to the plaintiff's indictment or cause them to be initiated.

The affidavits filed by the defendants in support of their current motions outline their contact with state and federal authorities as it relates to Patrolman Andersen's alleged physical abuse of them. The record indicates that the Newsweek defendants never filed any formal complaint against the plaintiff. Rather, they sent a telegram, general in nature, to the Chicago Police Superintendent complaining of the physical mistreatment of reporters by police officers in Lincoln Park. After defendant Jones had been beaten by a police officer, allegedly the plaintiff, defendant Bruno, copied down the name of the alleged aggressor from the officer's nameplate on his uniform. It was not until the day following the alleged occurrences, on August 27, 1968, that the Newsweek defendants identified the plaintiff by name. This was done when officers from the Internal Investigation Division of the Chicago Police Department came to the local Newsweek offices to confer with the defendants regarding their telegram. The Newsweek defendants upon request cooperated with the police department on subsequent occasions, including testifying at the disciplinary hearing wherein plaintiff was ultimately found guilty of mistreating the defendant Schulman, and also cooperated with the Federal Bureau of Investigation. They, in addition, complied with a subpoena issued by this Court and testified before the federal grand jury which subsequently indicted the plaintiff.

As to the Schulmans' relation to the causation or initiation of the grand jury proceedings, the records and affidavits submitted by those defendants indicate the following. The Schulmans and the plaintiff were involved in a physical and verbal altercation in Lincoln Park, immediately preceding the alleged Jones-Andersen altercation discussed above. Stuart Schulman complained to the police of physical mistreatment by Andersen and gave a statement to them orally on August 27, 1968. On December 11, 1969, he testified at the Police Board inquiry against Andersen and on November 13, 1968, he appeared pursuant to a subpoena before the federal grand jury. Mrs. Schulman's contacts with the authorities are of a similar nature, with the one exception that she was not called to appear before the Police Board inquiry.

As concerns the issue of legal causation, we said in our prior opinion:

  The issue of what actions are necessary to be
  considered as legal causation is unclear, but both
  parties agree that the Restatement of Torts (First)
  is a fair statement of the law. Section 653 of the
  restatement indicates that a person may be considered
  to have procured the institution of a criminal
  proceedings if he induces a third person or public
  prosecutor to initiate such proceedings, but may not
  be deemed to have procured the proceedings if he
  merely provides a public official information of
  another's supposed criminal conduct and the public
  prosecutor is left with the uncontrolled choice of
  whether or not to bring the proceedings. We presently
  have no information in the record concerning the
  nature of the grand jury proceedings, whether they
  were instituted to conduct a broad investigation into
  the conduct of many people or of just a few, and
  whether they were convened solely on behalf of the
  United States Government or as a proximate result of
  complaints of certain individuals such as the
  defendants herein. Because of these blanks in the
  present record, we cannot determine the precise
  nature of the defendants' relationship with these

To fill what we believed was a significant gap in the record before us, the defendants have filed the transcript of the proceedings before the Chief Judge of this Court when he impanelled the September, 1968 grand jury, the grand jury at issue herein. This transcript shows conclusively that the grand jury was impanelled to conduct a broad investigation into all phases of the disturbances relating to the Democratic convention, including potential violation of federal law by purported rioters, by police against private citizens, and by the mass media, and was not initiated directly or indirectly by any of the defendants. The transcript also shows that the then United States Attorney for this district informed the Chief Judge that the Attorney General of the United States had been conducting a broad investigation of his own which had not been completed and which to date had covered more than one thousand interviews. The Chief Judge responded to this information by specifically directing the United States Attorney to report all these matters to the grand jury and let it determine who, if anyone, should be presented for indictment for violation of any of the laws of the United States.

The Chief Judge made quite clear his intention that the grand jury was to proceed as it saw fit, not as the United States Attorney might think proper. With this factual background now in the record, it becomes quite obvious that, no matter how willing the defendants may have been to testify before the federal grand jury and no matter how much their actions may have otherwise fitted into the common law definition for liability for malicious prosecution, the defendants cannot be attributed with having legally caused the criminal action against the plaintiff under the rule of law that the parties have agreed is controlling. Cf., Gilbert v. Emmons, 42 Ill. 143 (1886); De Correvant v. Lohman, 84 Ill. App.2d 221, 228 N.E.2d 592 (1st Dist. 1967).

Because the plaintiff has failed to prove the existence of a genuine material issue of fact as to the element of legal causation and because the uncontroverted evidence indicates that the defendants did not legally cause the criminal indictment against the plaintiff, the motions of ...

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