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January 13, 1975


The opinion of the court was delivered by: Julius J. Hoffman, Senior District Judge.


This is a civil rights action based on conduct arising out of mistaken identity. The defendants have moved to dismiss the amended complaint on the ground that it fails to state a claim upon which relief can be granted.

The amended complaint contains, among others, the following allegations:

On April 28, 1974, plaintiffs Lewis Hobby and Terry Bell were sitting in Hobby's parked automobile. As Hobby attempted to start the automobile, the defendants, "acting under color of authority as [Sheriff's] Police Officers, . . . fired at plaintiffs with pistols," doing so "without just cause or provocation" and "with the intention of seriously wounding them." "[I]n an effort to avoid being wounded," plaintiffs abandoned the automobile and fled to a nearby Chicago police station. When the defendants arrived at the station they explained "that they had mistaken [plaintiffs] for other persons who [were] earlier [involved in] committing a crime and had been in error in firing . . . at them." (Amended Complaint, pars. 4-7). The plaintiffs claim that such conduct by officers acting under color of state law has deprived them of rights, privileges, and immunities guaranteed each citizen by the "Fourth, Fifth, and Fourteenth" Amendments to the United States Constitution. (Amended Complaint, par. 11).

Although expressing reservations about the appropriateness of the label, modern commentators adhere to the proposition that the Federal Rules of Civil Procedure sanction "notice" pleading. E.g., see Wright & Miller, Federal Practice and Procedure: Civil § 1202. The Seventh Circuit also adheres to this proposition. In the words of that Court:

  "The complaint is designed to apprise the defendant
  of the incident out of which a cause of action arose
  and the general nature of the action. The relevant
  facts may be determined by discovery, with the
  pleadings being liberally construed so as to do
  substantial justice and facilitate a proper decision
  on the merits." Roberts v. Acres, 495 F.2d 57 at
  58-59 (7th Cir. 1974).

The same concept carries forward into situations where a motion to dismiss is employed to attack the sufficiency of a complaint. For example, in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), Justice Black wrote:

  "In appraising the sufficiency of the complaint we
  follow, of course, the accepted rule that a complaint
  should not be dismissed for failure to state a claim
  unless it appears beyond doubt that the plaintiff can
  prove no set of facts in support of his claim which
  would entitle him to relief." 355 U.S. at 45-46, 78
  S.Ct. at 102.

As for civil rights complaints specifically, the Seventh Circuit demands that they be accorded a liberal construction. Roberts v. Acres, 495 F.2d 57, citing Eaton v. Bibb, 217 F.2d 446 (7th Cir. 1955) and Birnbaum v. Trussell, 347 F.2d 86 (2nd Cir. 1965).

  "The only elements which need to be present in order
  to establish a claim for damages under the Civil
  Rights Act are that the conduct complained of was
  engaged in under color of state law, and that such
  conduct subjected the plaintiff to the deprivation of
  rights, privileges, or immunities secured by the
  Constitution of the United States." 495 F.2d at 59.

In United States v. Classic, the Supreme Court ruled that "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." 313 U.S. 299 at 325-326, 61 S.Ct. 1031 at 1043, 85 L.Ed. 1368 (1941). In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Court concluded that the meaning given "under color of" law in the Classic case and adhered to in Screws v. United States, 325 U.S. 91 at 108-113, 65 S.Ct. 1031, 89 L.Ed. 1495 and Williams v. United States, 341 U.S. 97 at 99, 71 S. Ct. 576, 95 L.Ed. 774 was the correct one, and applied this meaning to the phrase as used in Section 1983. The Court also ruled that to be compensable under Section 1983 an act need not have been committed with "a specific intent to deprive a person of a federal right," and that as a civil remedy, Section 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 U.S. at 187, 81 S. Ct. at 484.

In this Circuit, the sufficiency of a civil rights complaint must be examined in the light of all these principles.

In the complaint in question, plaintiffs have alleged that at all times pertinent, the defendants acted in their official capacities as Sheriff's Police Officers; that under color of the laws of Illinois and its municipal subdivisions, the defendants, without just cause or provocation, did fire pistols at plaintiffs. Such allegations are sufficient to establish that the defendants "acted under color of state law." Roberts v. Acres, 495 F.2d 57, 59 (7th Cir. 1974); Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 ...

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