The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
Since its enactment as § 1 of the Civil Rights Act of 1871,
42 U.S.C. § 1983 (1976) has played a critical role in
protecting citizens against violations of their constitutional
rights by persons acting under color of state law.*fn1 The
Supreme Court has written that the original version of § 1983
was enacted for the express purpose of
"enforc[ing] the Provisions of the Fourteenth
Amendment." 17 Stat. 13. The predecessor of § 1983
was thus an important part of the basic alteration
in our federal system wrought in the Reconstruction
era through federal legislation and constitutional
amendment. As a result of the new structure of law
that emerged in the post-Civil War era — and
especially of the Fourteenth Amendment, which was
its centerpiece — the role of the Federal
Government as a guarantor of basic federal rights
against state power was clearly established.
Section 1983 opened the federal courts to private
citizens, offering a uniquely federal remedy
against incursions under the claimed authority of
state law upon rights secured by the Constitution
and laws of the Nation.
Mitchum v. Foster, 407 U.S. 225, 238-39, 92 S.Ct. 2151, 2160,
32 L.Ed.2d 705 (1972) (footnotes and citations omitted).
However, § 1983 has come under criticism. In particular, it
is blamed for creating a huge increase in the workload of the
federal courts,*fn2 and the Supreme Court has recently
expressed its determination to limit the scope of the statute,
rejecting the argument that "any party who is involved in
nothing more than an automobile accident with a state official
could allege a constitutional violation under § 1983." Parratt
v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d
420 (1981). In this case, defendants suggest that Parratt
counsels against entertaining this action brought against
officials of a municipal police department, claiming that they
must "have some degree of freedom and autonomy in the
administration, regulation and discipline of its employees,"
Memorandum in Support of Defendants' Motion to Dismiss
Plaintiff's Amended Complaint at 19, which would be undermined
by permitting plaintiff Richard Begg, an employee of the
department, to challenge its disciplinary actions as violative
of his constitutional rights. We must decide at what point the
sweeping goals of § 1983 must be limited by the considerations
expressed in Parratt V. Taylor.*fn3
Plaintiff is a police officer employed by the City of Park
Ridge, Illinois. At some point in 1981, plaintiff received an
unsatisfactory performance rating and was suspended from his
job for three days for his failure to issue enough traffic
tickets to satisfy the police department's quota. Plaintiff
brought suit in the Circuit Court of Cook County, Illinois
challenging his suspension. On November 23, 1981 the circuit
court entered an order reversing the three day suspension.
After receiving relief from the circuit court, plaintiff spoke
out publicly against the quota system. Thereafter, plaintiff
alleges, he was subjected to various forms of discipline in
retaliation for his public comments,*fn4 in violation of the
amendment.*fn5 Plaintiff also alleges that he has been denied
the opportunity to engage in part-time off duty employment and
was denied pay increases, in violation of the fourteenth
amendment.*fn6 In this lawsuit, he seeks damages and
declaratory and injunctive relief. The city manager of Park
Ridge and its director of public safety are named as
defendants, as is the city itself.
We must first determine whether the amended complaint states
a violation of the first and fourteenth amendments. If it does
not, then we need not reach the question whether plaintiff may
assert a claim under § 1983 in light of Parratt.
Plaintiff claims that defendants' refusal to grant him a pay
increase or the opportunity to engage in part-time employment
violated the due process clause of the fourteenth amendment.
The starting point for analysis of this claim is whether
plaintiff's interest in his pay increase and part-time
employment amounts to a "property" interest since, by its
terms, the due process clause only applies to deprivations of
"property."*fn7 Jago v. Van Curen, 454 U.S. 14, 17, 102 S.Ct.
31, 34, 70 L.Ed.2d 13 (1981) (per curiam); Greenholtz v.
Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668
(1979); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893,
901, 47 L.Ed.2d 18 (1976); Board of Regents v. Roth,
408 U.S. 564, 569-72, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1970).
The Supreme Court has written,
To have a property interest in a benefit, a
person must clearly have more than an abstract
need or desire for it. He must have more than a
unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.
Property rights, of course, are not created by
the Constitution. Rather they are created and
their dimensions are defined by existing rules or
understandings that stem from an independent
source such as state law — rules or understandings
that secure certain benefits and that support
claims of entitlements to such benefits.
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701,
2709, 33 L.Ed.2d 548 (1972).*fn8 The standard the Court has
developed is one of "cause;" if the plaintiff can assert that
he has a "legitimate claim of entitlement" not to lose a
valuable governmental benefit except for cause, then the
plaintiff has asserted a "property" interest.*fn9
The Court has also explored how it is that a claim of
entitlement not to lose a benefit except for cause can be
"[P]roperty" interests subject to procedural due
process protection are not limited by a few
rigid, technical forms. Rather, "property"
denotes a broad range of interests that are
secured by "existing rules or understandings." A
person's interest in a benefit is a "property"
interest for due process purposes if there are
such rules or mutually explicit understandings
that support his claim of entitlement to the
benefit and that he may invoke at a hearing.
Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33
L.Ed.2d 570 (1972). Thus, a claim may amount to "property"
whenever there are "mutually explicit understandings," even if
they are not in the form of technical rules of law.*fn10
Applying these principles to the case at hand, and bearing
in mind that defendants' motion to dismiss the complaint may
not be granted unless it appears beyond doubt that plaintiff
can prove no set of facts which would entitle him to
relief,*fn11 we conclude that plaintiff has adequately
alleged a constitutionally protected property interest. The
complaint alleges that the Park Ridge police department had a
long-standing custom and practice of permitting police
officers to seek outside employment.*fn12 The letter
plaintiff received denying his request for off duty employment
cited as a reason plaintiff's allegedly excessive use of sick
leave, implying that the department would not have felt free
to deny the request without a reason.*fn13 Plaintiff's
entitlement to pay increases has an even firmer base. The
contract between plaintiff's union and the city provides for
pay increases based on length of service. It states,
"Longevity will be paid according to the following
schedule. . . ."*fn14 The contract goes on to state,*fn15
Defendants rely on the last quoted sentence, arguing that it
means plaintiff had no legitimate expectation of a pay
increase. However, the mandatory language of the contract,
stating the increases "will be paid" and "shall be effective,"
argues against defendants' position. Moreover, the fact that
the contract states that the increases are "subject to
satisfactory merit ratings" implies that these ratings
constitute "cause" for denying an increase. Defendants'
construction of the last sentence also strikes us as odd in
that we think it unlikely that plaintiff's union would have
entered a contract containing a wholly illusory promise of
longevity inereases.*fn16 It is not clear beyond doubt that
plaintiff will be unable to prove a mutually explicit
understanding between his employer and himself that he would
be able to obtain outside employment and longevity pay
increases except for cause.*fn17 Accordingly, plaintiff has
made out a claim that his interest in obtaining outside
employment and longevity pay increases amounts to
constitutionally protected "property."*fn18
Once it is determined that plaintiff was deprived of a
property interest, the analysis shifts to the question whether
the deprivation was without due process of law. In order to
answer this question, we must determine what process was due
plaintiff. To decide what process is due, three factors must
First, the private interest that will be affected
by the official action; second, the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute safeguards; and
finally, the Government's interest, including the
function involved and the fiscal and
administrative burdens that the addition of
substitute procedural safeguards would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47
L.Ed.2d 18 (1976).*fn19
The first Eldridge factor involves the plaintiff's interests.
Here the interest asserted is in uninterrupted enjoyment of the
disputed benefit pending a hearing.*fn21 Plaintiff was without
the additional income generated by the longevity increase and
off duty employment. While his job was not at stake, the
cushion created by this additional income may have ...