United States District Court, Northern District of Illinois, E. D
January 16, 1973
SARAH RICHARDS ET AL., PLAINTIFFS,
JAMES SMOLTICH ET AL., DEFENDANTS.
The opinion of the court was delivered by: McGARR, District Judge.
MEMORANDUM OPINION AND ORDER
This case presents the issue whether plaintiffs are entitled
to a jury trial in
an action for compensatory and punitive damages brought under
Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983.
Plaintiffs allege that defendants separately and in concert
deprived them of their rights, privileges and immunities by
subjecting them to a pattern of conduct consisting of trespass
to the person, unlawful search and seizure of property and
persons, ransacking the premises, false arrest, false
imprisonment, invasion of their privacy, and other related
rights. Defendants are officers of the Sheriff's Police,
DeKalb County, Illinois, Northern Illinois University Police,
and the City of DeKalb Police Department. The incident in
question arose out of a drug raid by these officers upon the
premises at 430 North First Street, DeKalb, Illinois, on
January 20, 1969, during which the above-mentioned rights were
alleged to have been violated. Plaintiffs demanded a trial by
jury. Defendants also originally demanded a jury trial, but
later withdrew this demand and filed a motion to strike
plaintiffs' demand. Defendants base this motion upon the
"statutory" nature of the cause of action, Section 1983 of
Title 42, United States Code.
The issue is controlled by the principles announced by the
Seventh Circuit Court of Appeals in the recent case of Rogers
v. Loether, 467 F.2d 1110 (7th Cir., 1972). That case held
that plaintiff was entitled to a jury trial in an action for
compensatory and punitive damages under Section 812 of the
Civil Rights Act of 1968, 42 U.S.C. § 3612. While that
case dealt with a different statute, the principles contained
therein when applied to Section 1983 are compelling.
The Seventh Amendment to the United States Constitution
"In suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise
reexamined in any Court of the United States,
than according to the rules of the common law."
In the case of Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 7
L.Ed. 732, the United States Supreme Court rejected the
distinction that a jury trial was improper because the claim
arose not under the common law but under the statutes of
Louisiana. Rather, the Court focused on the character of the
claim as a "legal right". In a number of cases involving
enforcement of statutory rights, the Supreme Court has granted
the right to a jury trial. In Beacon Theatres, Inc. v.
Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959),
the Court held that the right to a jury trial existed in an
action brought under Section 4 of the Clayton Act. In Dairy
Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44
(1962), the Court applied the Seventh Amendment to an
ambiguous claim for damages, either as an amount due under the
contract or as a statutory claim for damages for trademark
infringement. In Texas & Pacific Railway v. Rigsby,
241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (1916), the Court upheld the
right to a jury trial in an action for violation of the Safety
Appliance Act of 1910. In Fleitmann v. Welsbach Street
Lighting Co., 240 U.S. 27, 36 S.Ct. 233, 60 L.Ed. 505 (1916),
the Court found a right to a jury trial in an action for
treble damages under Section 7 of the Sherman Act. Finally, in
Hepner v. United States, 213 U.S. 103, 29 S.Ct. 474, 53 L.Ed.
720 (1909), the Court applied the Seventh Amendment right to
trial by jury to a civil action to recover a statutory penalty
for a violation of Sections 4 and 5 of the Immigration Act of
The crucial distinction as noted by the Supreme Court in
N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct.
615, 81 L.Ed. 893 (1937), is that the Seventh Amendment is
applicable not only to a suit at common law but also to a
judicial proceeding "in the nature of such a suit". As stated
in Rogers v. Loether, 467 F.2d 1110, 1115 (7th Cir. 1972);
"The distinction drawn in the opinion (Jones &
Laughlin) is not between substantive rights
derived from the common law as opposed to those
created by statute; it is the difference between
a proceeding `in the nature of a suit at common
law' and a `statutory proceeding'."
According to the Seventh Circuit, this distinction between
"statutory" and judicial proceedings related to whether the
action was administrative rather than judicial and thus did
not invoke the original jurisdiction of a Court in determining
factual issues or fashioning a remedy. Rogers v. Loether at
In the instant action, Section 1983 of Title 42 through
Section 1343(3) of Title 28, United States Code provides that
District Courts shall have original jurisdiction of any civil
"(3) To redress the deprivation under color of
any State law, statute, ordinance, regulation,
custom or usage of any right, privilege or
immunity secured by the Constitution of the
United States or by any Act of Congress providing
for equal rights of citizens or of all persons
within the jurisdiction of the United States."
28 U.S.C. § 1343(3)
The rights protected are statutory but the proceeding is
judicial. Therefore, the issue is whether an action under
Section 1983 is "in the nature of a suit at common law."
Historical reference is important in determining the
applicability of the Seventh Amendment. As stated by the
"The right of trial by jury thus preserved is
the right which existed under the English common
law when the Amendment was adopted.
"The aim of the amendment, as this Court has
held, is to preserve the substance of the
common-law right of trial by jury, as
distinguished from mere matters of form or
procedure . . ."
Baltimore & Carolina Line, Inc. v. Redman,
295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636
This view of the Seventh Amendment has, however, recently
udergone some modification. As stated in Ross v. Bernhard,
396 U.S. 531
, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970): "The
Seventh Amendment question depends on the nature of the issue
to be tried rather than the character of the overall
action.*fn10" The Court went on in Footnote 10 to define the
nature of the claim:
Historically, actions such as the instant case have been
triable to a jury. The case of Wilkes v. Wood, 19 How.St. Tr.
1153, 98 Eng.Rep. 489 (1763) is but one example of the right
to a trial by jury in an unreasonable search and seizure case.
A similar and equally important case is Entick v. Carrington,
19 How.St.Tr. 1029, 95 Eng.Rep. 807 (1765), involving an
action for trespass for an unwarranted intrusion into privacy.
It therefore seems quite clear that actions for trespass, and
search and seizure violations were triable to a jury in the
English common law prior to and as of the adoption of our
The second consideration mentioned in Ross is "the remedy
sought". Here, plaintiffs seek both compensatory and punitive
damages, which typically is the relief sought in an action at
law. No equitable relief is sought.
The third consideration in Ross is "the practical abilities
and limitations of juries". Our case involves a simple factual
situation of the planning and execution of a drug raid with the
alleged resulting infringements of plaintiffs' rights. Such a
case should certainly be
within the abilities of a jury, especially when it is
considered that complex antitrust and shareholder derivative
suits have been found suitable for jury determination.
Therefore, it is apparent that this case meets all of the
tests established for application of the Seventh Amendment and
that plaintiffs are entitled to a trial by jury. Accordingly,
defendants' motion to strike plaintiffs' jury demand is
*fn10 "As our cases indicate, the `legal' nature of an issue
is determined by considering first, the pre-merger custom with
reference to such questions; second, the remedy sought; and
third, the practical abilities and limitations of juries. Of
these factors, the first, requiring extensive and possibly
abstruse historical inquiry, is obviously the most difficult
to apply." Bernhard at 538, fn. 10, 90 S.Ct. at 738.
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