Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 4706 -- James B. Parsons, Judge.
Eschbach and Coffey, Circuit Judges, and Swygert, Senior Circuit Judge. Swygert, Senior Circuit Judge, dissenting in part and concurring in part.
An F.B.I. informant accompanied a murderer on the night that the murderer killed the plaintiff's brother. The issue in this case is whether that informant breached a constitutional duty owed to the murder victim and consequently caused the victim's death. We conclude, based on the undisputed facts, that he did not and thus we affirm the judgment of the district court. It follows from this conclusion that the judgment entered in favor of F.B.I. supervisory officials must also be affirmed.
The facts surrounding the murder of Jeff Beard have been litigated in at least two trials and reported in two opinions of this court. See United States v. Robinson, 503 F.2d 208 (7th Cir. 1974), cert. denied, 420 U.S. 949, 43 L. Ed. 2d 427, 95 S. Ct. 1333 (1975); Beard v. Mitchell, 604 F.2d 485 (7th Cir. 1979). The basic facts have thus become fixed through litigation and time and are not generally disputed in the instant case. We will not again recite the colorful history of William O'Neal, an F.B.I. informant connected with Beard's death; instead we will set forth the salient facts of Jeff Beard's murder over ten years ago.
William O'Neal was considered by the F.B.I. to be an excellent informant. As such, his contact person in the F.B.I., agent Roy Mitchell, encouraged O'Neal to gather information about a Chicago police officer named Stanley Robinson. In April of 1972, therefore, O'Neal accompanied Robinson during several criminal episodes, including a homicide. O'Neal related Robinson's activities to agent Mitchell, who naturally was skeptical about the claim that a police officer was a violent criminal. In accordance with F.B.I. procedure, agent Mitchell reduced O'Neal's statements to writings available for inspection by his superiors.
On the afternoon of May 17, 1972, Robinson called O'Neal and told him that he would not see O'Neal that evening because of other plans. O'Neal protested that he did not wish to be excluded from any plans. Robinson then explained that his plans consisted of a small job of no interest to O'Neal. Nevertheless, O'Neal did persuade Robinson to include him in the night's activities.
Robinson, accompanied by O'Neal, set out that night to perform a murder contract. Robinson only had a vague description of the target and only knew his first name -- Jeff. After driving around searching for Jeff for some time, Robinson acquired some better identification information concerning Jeff. Robinson then returned to the search for 2 1/2 hours until O'Neal stated that he was tired and wanted to go home. While driving O'Neal back to his car, Robinson fortuitously spotted Jeff Beard in a pool hall.
Robinson and O'Neal sat in the car outside of the pool hall for 45 minutes. During that time O'Neal went to a telephone and tried to call agent Mitchell at his home. Mitchell was not at home and O'Neal returned to the car. When Beard finally came out of the pool hall, Robinson approached, arrested, and handcuffed him. Robinson and Beard got in the back seat of the car and Robinson ordered O'Neal to drive to the "Indiana District," which O'Neal interpreted as an instruction to drive south. O'Neal drove south until Robinson, who wanted to make a telephone call, ordered him to exit from the expressway. O'Neal did exit and Robinson left the car for 3 to 5 minutes to make a call.
When Robinson returned to the car, he began driving and told Beard that he was not under arrest but that they wanted him to sell narcotics. After entering Indiana, Robinson pulled off on the shoulder of the road and asked Beard to get out of the car so that they could talk. O'Neal remained in the car. When Beard got out of the car, Robinson shot him; the wound was not fatal however and Beard raced across the road. O'Neal told Robinson that he had really "messed up." Undaunted, Robinson pursued Beard across the road, caught up with Beard, and murdered him.
O'Neal called agent Mitchell early the next morning and reported the murder of Jeff Beard. Owing chiefly to O'Neal's testimony, Robinson was subsequently convicted on charges of violating Jeff Beard's constitutional rights, see 18 U.S.C. §§ 241, 242. See United States v. Robinson, 503 F.2d 208 (7th Cir. 1974), cert. denied, 420 U.S. 949, 43 L. Ed. 2d 427, 95 S. Ct. 1333 (1975). Robinson was sentenced to life imprisonment.
In 1976 Eloise Beard brought this action directly under the Constitution, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), for damages relating to the murder of her brother. Named as defendants in this suit were O'Neal, agent Mitchell's supervisors in the F.B.I.'s Chicago office, and the acting director of the F.B.I.*fn1 The plaintiff brought a separate Bivens-type suit against agent Mitchell.
While the instant case was pending, the action against Mitchell went to trial before a jury. The jury returned a general verdict in Mitchell's favor; judgment was accordinly entered, and we affirmed, see Beard v. Mitchell, 604 F.2d 485 (7th Cir. 1979). The district court in the present case subsequently cited the Mitchell litigation and ruled that res judicata barred the plaintiff's Bivens-type claims against the F.B.I. officials and O'Neal. The defendants' motions for summary judgment were accordingly granted and these appeals pursuant to 28 U.S.C. § 1291 followed.
Under the res judicata doctrine, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Montana v. United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979). Mutuality of parties remains an essential element of the doctrine. Nevada v. United States, 463 U.S. 110, 103 S. Ct. 2906, 2925, 77 L. Ed. 2d 509 (1983). Res judicata bars the present claims against O'Neal and the F.B.I. officials, therefore, only if these defendants are in privity with agent Mitchell.
We can discern no basis for holding that all F.B.I. agents and informants, sued individually for their own acts or inactions, are in privity for res judicata purposes. See Restatement (Second) of Judgments §§ 43-61 (1982). To be sure, Mitchell and all of the defendants in this case are associated with the F.B.I. For res judicata purposes, however, we fail to perceive why this relationship is relevant and why a suit against one F.B.I. agent should be considered a suit against all people associated with the agency.
The case that the defendants cite in connection with their privity argument, Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 84 L. Ed. 1263, 60 S. Ct. 907 (1940), provides no support once the case is examined fully and in its historical context. In that case the Court wrote:
Where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal. . . . There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in ...