and Young was given or a chance to depart made, such inquiry
might have been futile. It is unlikely that Crawford, if asked,
would have admitted receipt of a notice to vacate the property in
light of the fact that she lied to Henry about her Union activity
and why she was on the property.
The Court finds from the evidence that it was reasonable for
Henry to have believed that probable cause to arrest Crawford and
Young for trespass existed. The Court also credits Henry's
assertion that his belief was held in good faith. Of course, if
Henry actually learned of Crawford's lie just prior to her
arrest, the reasonableness of his good faith belief is enhanced.
Henry seeks summary judgment on the false arrest claim. Summary
judgment will not be granted where a material fact is genuinely
disputed. Fed.R.Civ.P. 56. Furthermore, summary judgment
generally is inappropriate where a disputed issue of material
fact is one of subjective intent or good faith. See, e.g., Poller
v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82
S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Askew v. Bloemker,
548 F.2d 673 (7th Cir. 1976). Here the parties differ over whether Henry's
decision to arrest Crawford and Young was made in good faith and
was reasonable. Nonetheless, summary judgment is appropriately
granted in Henry's favor.
The Supreme Court has ruled that in the proper case summary
judgment is appropriate for a police officer who is charged under
section 1983, although subjective good faith is at the heart of
the qualified immunity defense. Wood v. Strickland, 420 U.S. 308,
95 S.Ct. 992, 43 L.Ed.2d 214 (1975). The conditions are: If a
reasonably held, good faith belief in the lawfulness of an action
is shown and the officer did not know that his actions would
violate the plaintiff's constitutional rights or the officer did
not otherwise behave maliciously. Id. at 322, 95 S.Ct. at 1000.
See also Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55
L.Ed.2d 24 (1978); Pierson v. Ray, supra, 386 U.S. at 557, 87
S.Ct. at 1219; Eberle v. Baumfalk, 524 F. Supp. 515, 516 (N.D.Ill.
1981); Brubaker v. King, supra, at 538-39.
This is a proper case. Henry in good faith, reasonably believed
that there was probable cause to arrest Crawford and Young for
trespass. Indeed, they were on private property, although not
leafletting, when Henry arrived. Henry was twice assured that the
owners of the property would sign a complaint for trespass
against Crawford and Young. It is irrelevant that Crawford and
Young may not have been given actual notice of their alleged
wrongful entry or an opportunity to depart. Furthermore, there is
no evidence that Henry, despite his reasonable good faith belief,
acted maliciously or with knowledge that his actions might
violate the plaintiffs' rights. Summary judgment is granted in
favor of Henry on the issue of false arrest.
B. Excessive Force
Crawford also complains that Henry used excessive force to
effect her arrest. She states that although she offered no
resistance, "Officer Henry roughly twisted my arm behind my back,
and pulled it up for no apparent reason."
A police officer is never justified in effecting an arrest by
use of excessive force. In order to keep within the confines of
the Eighth and Fourteenth Amendments, only force reasonable under
the circumstances is proper. Theoretically no force may be
expended if an arrestee quietly submits to arrest. See, e.g.,
Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert. denied,
455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Feemster v.
Dehntjer, 661 F.2d 87 (8th Cir. 1981).
Behavior that might constitute a tort under state law is not
necessarily compensable under section 1983, however. Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388, 409, 91 S.Ct. 1999, 2011, 29 L.Ed.2d 619 (1971)
(Harlan, J. concurring). As Judge Friendly observed in Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied,
414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973), "[n]ot every push or
shove, even if it may later seem unnecessary in the peace of
a judge's chambers, violates a prisoner's constitutional rights."
The test for imposing liability is whether the officer's conduct
"shocks the conscience." Rochin v. California, 342 U.S. 165, 172,
72 S.Ct. 205, 209, 96 L.Ed. 183 (1952); Rhodes v. Robinson,
612 F.2d 766, 772 (3d Cir. 1979).
Even if Crawford proved at trial that Henry roughly twisted her
claim and that she did not resist arrest, her claim does not rise
to the level of a constitutional violation. Crawford does not
claim to have consulted a doctor for treatment of her alleged
injuries. No proof of permanent or serious physical injury has
been suggested. Certainly the Court disapproves any unnecessary
use of force by police officers. However, the alleged
arm-twisting is not behavior that would shock the conscience of a
reasonable person. Thus, no genuine issue of a material fact
remains to try. Henry's motion for summary judgment is granted in
his favor and against Crawford on her excessive force claim.
C. Failure to Train, Instruct, Control, Supervise or Discipline
Crawford and Young allege that the Village, its president
Aigner and police chief Hammond negligently and intentionally
failed to train, instruct, supervise, control or discipline
Henry, in violation of section 1983. They cite the purported
failures as examples of a custom, policy or practice which, if
promulgated or acquiesced in by the Village and Henry's
superiors, would trigger liability under Monell v. New York
Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978). The Court need not test the merits of that
argument*fn6 since Henry has not violated any constitutional or
federal statutory rights of Crawford and Young. In Spriggs v.
City of Chicago, 523 F. Supp. 138, 141 (N.D.Ill. 1981), Judge
Getzendanner held that if the accused officer is not liable, then
his supervisor is not liable either. This is so even if a suspect
custom, policy or practice of the municipality is demonstrated.
This Court subscribes to the Spriggs holding. Henry is not
liable for false arrest or for the use of excessive force.
Accordingly, neither the Village, Aigner nor Hammond can be
liable for Henry's lawful actions. Summary judgment is granted
for the Village, Aigner and Hammond. Summary judgment also is
granted in favor of public defendant Bierman for the additional
reason that Bierman's duties as Village attorney do not include
any responsibility over the Village's police force.
D. 42 U.S.C. § 1985(3)
Crawford and Young claim that the public defendants have
violated their rights under 42 U.S.C. § 1985(3). That section
prohibits persons from conspiring to deprive another person or
class of persons of the equal protection or privileges and
immunities of the law. In Griffin v. Breckenridge, 403 U.S. 88,
101-02, 91 S.Ct. 1790, 1797, 29 L.Ed.2d 338 (1971), the Supreme
Court, however, held that not every tortious, conspiratorial
interference with the rights of others is actionable. "To state a
cognizable claim under section 1985(3) [a complaint must
allege] . . . some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators'
action." Id. at 102, 91 S.Ct. at 1798. See also Lesser v. Braniff
Airways, Inc., 518 F.2d 538
(7th Cir. 1973); Brainerd v. Potratz, 421 F. Supp. 836 (N.D.Ill.
1976), aff'd 566 F.2d 1177 (7th Cir. 1977).
The Seventh Circuit describes a protected class under section
1985(3) by immutable characteristics, such as race, ethnicity,
sex or religion. Murphy v. Mount Carmel High School,
543 F.2d 1189 (7th Cir. 1976). The Mount Carmel case held that a class of
employees is not within section 1985(3) since its salient
characteristic, being employed, is subject to ready change. Id.;
Bianco v. American Broadcasting Companies, 470 F. Supp. 182
Furthermore, a class for purposes of section 1985(3) cannot be
composed of those who exercise rights of free speech or
association or those who allege infringement of free speech or
association rights. Carchman v. Korman Corporation, 456 F. Supp. 730,
739 (E.D.Pa. 1978), aff'd 594 F.2d 354 (3d Cir. 1979), cert.
denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1980). If
such a class was permitted, the limiting goal of Breckenridge
would be gutted. See also Dombrowski v. Dowling, 459 F.2d 190
(7th Cir. 1972) (proposed classes of criminal lawyers versus
noncriminal lawyers not classes within § 1985(3)); DeSantis v.
Pacific Telephone and Telegraph Co., Inc., 608 F.2d 327 (9th Cir.
1979) (proposed class of homosexual persons not a class protected
by § 1985(3)); Cain v. Archdiocese of Kansas City, Kansas,
508 F. Supp. 1021 (D.Kansas 1981) (proposed class of handicapped
persons not class within 1985(3)).
This Court finds that a class based on union membership, like
the putative class of Mount Carmel High School employees, is not
worthy of section 1985(3) protection. The finding is dicta,
however, since Crawford and Young have not alleged that they
belong to a class — protected by section 1985(3) or otherwise —
or that any of the defendants conspired against them because of
their membership in such a class. They cite neither their Union
affiliation and associated expression of First Amendment freedoms
nor their gender as the basis for the alleged conspiratorial
discrimination against them. Plaintiffs' section 1985(3)
allegations widely miss the mark and are dismissed for failure to
state a claim upon which relief may be granted.
E. Moats' Complaint
Finally, the complaint brought by Moats also is dismissed for
failure to state any claim. Moats, the first named plaintiff in
this matter, is the president of the Union to which Crawford and
Young belong. Although there are no specific allegations made by
Moats in any count, apparently it was his intention to join
Crawford and Young in their allegations against all of the
private and public defendants. The allegations of wrongful arrest
and excessive force in Counts III and IV, however, are personal
to Crawford and Young and do not effect Moats' rights
individually or in his capacity as a representative of the Union.
He cannot maintain wrongful arrest or excessive force actions
against any of the defendants. Nor has Moats stated a claim
cognizable under section 1985(3), since he too has not alleged a
class-based discriminatory conspiracy.
Accordingly, an order is entered
(1) Granting summary judgment on Counts III and IV in favor of
defendants Henry, the Village, Aigner, Bierman and Hammond on the
issues of false arrest and excessive force.
(2) The allegation of conspiracy in violation of
42 U.S.C. § 1985(3) is dismissed with prejudice for failure to state a claim
for which relief can be granted.
(3) This cause is dismissed in its entirety.
IT IS SO ORDERED.