The opinion of the court was delivered by: Tone, District Judge.
Plaintiff alleges that he was issued a certificate of
appointment as a "special policeman" but that the certificate was
revoked by defendants without notice or hearing eleven weeks
after he was arrested and charged with unlawful possession of a
weapon and failure to register and carry evidence of
registration, whereupon he was discharged from his employment
with the University of Chicago. Plaintiff further alleges that
three weeks after the revocation of his certificate the criminal
charges against him were dismissed. In revoking plaintiff's
certificate, defendants acted under the authority of a provision
of Chapter 173 of the Municipal Code which expressly provides
that the certificate of a special policeman not employed by a
common carrier may be revoked without cause. Plaintiff alleges
that this provision, on its face and as applied by defendants in
revoking his certificate without notice, specification of the
charges, or hearing, deprived him of due process rights
guaranteed by the Fourteenth Amendment to the United States
Constitution. He also alleges that because the ordinance requires
that the certificate of a "special policeman" employed by a
common carrier may only be revoked for cause, but that the
certificate of special policemen not so employed may be revoked
without cause, the ordinance on its face violates the equal
protection clause of the Fourteenth Amendment.
Plaintiff's action is brought pursuant to 42 U.S.C. § 1983
against defendants, the Superintendent of Police and the Director
of Personnel of the Chicago Police Department, for deprivation
under color of state law of rights secured to him by the
Constitution of the United States. In Count I he seeks
declaratory relief and an injunction enjoining defendants from
refusing to reinstate his certificate of appointment as a special
policeman, and in Count II he seeks money damages.
Defendants have moved for judgment on the pleadings. Plaintiff
had moved for summary judgment as to Count I. Plaintiff and
defendants have represented, at least as to Count I, that there
is no genuine issue as to any material fact and both sides seek
judgment as a matter of law.
I can find no rational basis for providing for revocation
without cause of the certificate of a special policeman employed
at a fixed place while requiring cause for the revocation of the
certificate of a special policeman employed by a common carrier.
This discrimination against special policemen in plaintiff's
class violates the equal protection clause of the Fourteenth
Amendment. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d
1485 (1957); Hartford Steam Boiler Inspection & Ins. Co. v.
Harrison, 301 U.S. 459, 57 S.Ct. 838, 81 L.Ed. 1223 (1937); Smith
v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264 (1931).
"Once licensees are issued, as in petitioner's case,
their continued possession may become essential in
the pursuit of a livelihood. Suspension of issued
licenses thus involves state action that adjudicates
important interests of the licensees. In such cases
the licenses are not to be taken away without that
procedural due process required by the Fourteenth
Amendment." 402 U.S. at 539, 91 S.Ct. at 1589.
The license of a special policeman, issued pursuant to standards
which he has satisfied as a prerequisite to obtaining his
license, is a property right on which the city may not impinge
without satisfying due process. See Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972). As the Supreme Court stated in Schware v. Board of Bar
Examiners, 353 U.S. 232, 238-239, 77 S.Ct. 752, 756, 1 L.Ed.2d
796 (1957) with respect to the practice of law:
"A State cannot exclude a person from the practice of
law or from any other occupation in a manner or for
reasons that contravene the Due Process or Equal
Protection clause of the Fourteenth Amendment. . . .
A State can require high standards of qualification,
such as good moral character or proficiency in its
law, before it admits an applicant to the bar, but
any qualification must have a rational connection
with the applicant's fitness or capacity to practice
law. . . . Even in applying permissible standards,
officers of a State cannot exclude an applicant when
there is no basis for their finding that he fails to
meet these standards, or when their action is
invidiously discriminatory." (Emphasis added.)
And see In re Ming, (No. 71-1754 7th. Cir. 1972). See also
Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d
287 (1970), holding that welfare benefits may not be terminated
without giving the recipient a hearing on the grounds for
The due process objection to the ordinance cannot be obviated
by the fact that in this case the reason for the revocation was
arrest on a weapons charge. Arrest without more would not
constitute cause. Schware v. Board of Bar Examiners, supra,
353 U.S. 232, 241, 77 S.Ct. 752 (1957). Conviction or an
administrative determination of guilt, after notice and hearing,
would justify revocation.
It must be recognized that the fact that a special policeman is
authorized to carry a gun creates a special problem for the city.
There are undoubtedly circumstances under which the protection of
society would require immediate suspension of the special
policeman's right to carry a gun, if not his certificate as a
special policeman.[fn**] When such a threat to the public safety
exists, the notice and hearing that are prerequisites for a
suspension (cf. In re Ming, (No. 71-1754 7th Cir. 1972)) will not
be the same as for a permanent revocation, provided a prompt
hearing is afforded on the issue of permanent revocation. And the
hearing on permanent revocation need not be conducted in
accordance with the procedural rules that would govern a criminal
trial. But some form of notice and hearing would seem to be
required by the due process clause, as interpreted by the cases
referred to above.
Plaintiff is directed to submit a form of injunctive order.
Count II of the complaint remains to be tried. Defendants'
liability under that count will depend upon their "good faith" in
acting pursuant to the ordinance. See Pierson ...