Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 3260 -- J. Sam Perry, Judge.
Cummings, Chief Judge, Gibson,*fn** Senior Circuit Judge, and Cudahy, Circuit Judge.
On the morning of February 15, 1978, Mary Ann Tikalsky rushed, coatless, out of the Greater Grand Boulevard Mental Health Center, where she was employed as a city social worker, and began berating two Chicago policemen who were ticketing her car. Miss Tikalsky's wrath had been stirred by two circumstances: on the snowbound streets around her office parking of any kind -- legal or illegal -- was hard to find; and she thought the police department was exhibiting more zeal writing parking tickets than it had shown the week before investigating a robbery in which she had been the victim. Miss Tikalsky's outburst cost her dearly.
She was arrested for disorderly conduct and taken to the Second District Police Station at 51st Street and Wentworth Avenue. There a female detention aide subjected her to a visual strip search. First Miss Tikalsky had to bare her body from the waist up; then she had to lower her slacks and underwear, squat and bend from the waist several times, and alternately face toward and away from the matron. After the search Miss Tikalsky was kept in the women's detention center. Although she had money with her, she did not know that she could post bond. She remained in the detention area for four hours, until a friend arrived and paid the $35 bond. On March 3, 1978, Miss Tikalsky was tried and acquitted on the disorderly conduct charge.
These events generated a Section 1983 suit. Count I of the complaint as amended charged the arresting officers with false arrest and malicious prosecution; Count II charged one of the arresting officers with the use of excessive force and the other with failure to intervene; Count III charged the City of Chicago, the police chief, his subordinates, the watch commanders at the Wentworth Avenue station, the arresting officers, and the matron with equal protection, privacy, and Fourth Amendment violations based on the strip search. After a ten-day trial in December 1980, the jury awarded Miss Tikalsky damages of $30,000 against the City of Chicago and Second District Watch Commander Norman Schmiedeknecht. The verdict was not broken down by counts and defendants, but the parties agree that it must have been based on the strip-search count. There is no telling which constitutional right the jury thought the strip search infringed.
The City and Norman Schmiedeknecht presented the following post-trial motion on January 8, 1982 (Tikalsky App. 9-10):
1. Defendants seek a judgment notwithstanding the verdict pursuant to Rule 50 of the Federal Rules of Civil Procedure for the following reasons:
(a) As a matter of law the searching policy utilized in lockup facilities was constitutional. Bell v. Wolfish, [441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861] * * *.
(b) When all the evidence is viewed in a light most favorable to the plaintiff, it still overwhelmingly favors these defendants and no other verdict than one in defendants' favor can stand.
2. In the alternative, defendants seek a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure for the following reasons:
(a) The issue of the constitutionality of the searching policy utilized in the lockup facilities is a question of law and should not have been submitted to the jury.
3. In the alternative, the judgment against Norman Schmiedeknecht is illogical and erroneous with respect to the verdicts against the remaining individuals and a judgment notwithstanding the verdict should be entered.
In her January 26, 1981, memorandum in opposition to the defendants' motion, Miss Tikalsky met head-on the contention that Bell v. Wolfish put the City's strip-search policy beyond challenge. One of the cases she relied on was People v. Seymour, 80 Ill. App. 3d 221, 398 N.E.2d 1191, 35 Ill. Dec. 241 (1st Dist. 1979) (henceforth Seymour I). However, in the two-week interval between the filing of her memorandum and the filing of the defendants' reply, the Illinois Supreme Court reversed that case, 84 Ill. 2d 24, 416 ...