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Calvin v. Conlisk

June 30, 1975


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 72 C 3230 Joseph Sam Perry, Judge.

Cummings, Pell and Tone, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge.

This action was brought under the Civil Rights Act, 42 U.S.C. § 1983, to redress alleged deprivations under color of law of rights, privileges and immunities secured by the First, Fourth, Fifth, Sixth and Fourteenth Amendments.*fn1 The plaintiffs are seven individuals, the Afro-American Patrolmen's League, Inc., the Concerned Citizens for Police Reform, and the Chicago Urban League. All of the organizational plaintiffs are Illinois not-for-profit corporations. The defendants were twelve named police officers,*fn2 the Chicago Superintendent of Police,*fn3 the five members of the Police Board, and the City of Chicago.

Besides detailing incidents in which the constitutional rights of the individual plaintiffs were supposedly violated by the named policemen and unknown John Doe policemen, the plaintiffs alleged that those incidents of police misconduct "are representative and exemplary of many similar occurrences of misconduct by Chicago policemen against civilians recurring over the course of many years, each of which involves the common element of excessive or unwarranted use of physical force." The complaint further states that unless defendants are enjoined, plaintiffs' and other persons' rights to be free from "excessive or unwarranted physical force by policemen * * *; unlawful arrest without a warrant or probable cause * * *; illegal search and seizure and other arbitrary and abusive police practices" will continue to be violated. Plaintiffs also allege that the Superintendent of Police, the Police Board members, and the City of Chicago

"have the duty to prevent such misconduct and to discipline police officers who engage in it. However, they have failed to fulfill this duty, and have instead followed a course of conduct that condones, and in effect encourages such abusive misconduct. Their course of conduct is manifested particularly in the operation by these defendants of a police discipline system that, as a pattern or practice, does not make thorough investigations of such abusive misconduct and does not take appropriate disciplinary action against police officers who engage in it."

Plaintiffs further alleged that civil damage suits were an inadequate remedy because they lack deterrent effect. The plaintiffs complained that policemen bear neither the costs of such litigation nor of the final damage judgment, if any, and that adequate disciplinary action is not taken by the Department following a successful civil suit. Plaintiffs therefore sought an injunction against the City and the official defendants,*fn4 ordering them to take all appropriate steps within their power to prevent police officers from engaging in unconstitutional misconduct and to discipline officers who engage in such misconduct. In that regard, plaintiffs attacked the adequacy of the present internal disciplinary machinery and requested that the court order the institution of an effective police discipline system to handle complaints of unconstitutional police misconduct. Damages were asserted against the defendant police officers for violation of the individual plaintiffs' constitutional rights. Counterclaims were filed by nine of the defendant police officers seeking damages for bodily pain and mental anguish caused by the individual plaintiffs.

In a memorandum opinion*fn5 relying primarily upon Gilligan v. Morgan, 413 U.S. 1, 37 L. Ed. 2d 407, 93 S. Ct. 2440, the district court granted the motion of the City and the official defendants to dismiss the cause of action against them on the ground that the claim for declaratory and injunctive relief presented a non-justiciable controversy. 367 F. Supp. at 479-481, 484.

Acknowledging the possibility that its justiciability determination might be reversed on appeal, the district court went on to rule that the complaint failed to confer jurisdiction upon the court over the City of Chicago. 367 F. Supp. at 482-484. In rejecting allegations of jurisdiction under 28 U.S.C. § 1343, the court relied on City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222. The district judge also ruled that there was no federal question jurisdiction over the City under 28 U.S.C. § 1331 because

"this court cannot see that the equitable claim here against the City is so capable of evaluation in monetary terms as to satisfy the jurisdictional amount requirement * * *. It does not seem that plaintiffs have a proper basis on which to allege an amount in controversy as to the City exceeding the $10,000 jurisdictional minimum, individually, or in the aggregate, either ad damnum, or by way of injunctive relief." 367 F.Supp at 484.

Finally, the court refused to exercise pendent jurisdiction. 367 F. Supp. at 483.

At defendants' request, the district court dismissed the three plaintiff organizations as parties.*fn6 The court also dismissed the 25 John Doe defendants for lack of jurisdiction because they had not been served and no appearance was entered for them.*fn7 367 F. Supp. at 486. The court refused to grant plaintiffs' motion to dismiss the nine counterclaims of defendant policemen, and certified this interlocutory appeal pursuant to 28 U.S.C. § 1292(b). 367 F. Supp. at 486. Only the counterclaims and the seven individual damage actions remained in the case after the district court's November 8, 1973, decision.

Justiciability of Police Discipline Issues

Originally the district court denied defendants' motion to dismiss the complaint except insofar as damages were sought from the City. However, on July 10, 1973, the defendants requested the court to reconsider on the basis that the complaint failed to present justiciable claims under the just released decision in Gilligan v. Morgan, 413 U.S. 1, 37 L. Ed. 2d 407, 93 S. Ct. 2440. As seen, the ...

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