United States District Court, Northern District of Illinois, E.D
April 11, 1984
STANLEY A. ANTON, PLAINTIFF,
GLEN LEHPAMER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Stanley Anton ("Anton") originally filed suit under 42 U.S.C. § 1983
("Section 1983") against:
1. Downers Grove police officers Glen Lehpamer
("Lehpamer"), Joseph Degand ("Degand") and William
Moore ("Moore"), charging their use of excessive
force in effecting Anton's arrest; and
2. DuPage County Jail law enforcement officers
Louis Cook ("Cook") and Michael Blazek ("Blazek") and
DuPage County Sheriff Richard Doria ("Doria"),
asserting their failure to give Anton adequate
medical treatment for an injury sustained during the
Cook and Doria (on May 13, 1982) and Blazek (on December 30,
1982) extricated themselves as defendants via the summary
judgment route. Now Lehpamer, Degand and Moore also move for
summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons
stated in this memorandum opinion and order, their motion is
On December 21, 1978 Lehpamer, Degand and Moore responded to a
dispatch call that an intoxicated man had created a disturbance
in his home and had left carrying a .45 caliber gun.*fn2 Moore
saw Anton walking down the street with his hands in his jeans
pockets. Moore aimed his police vehicle spotlight at Anton and
ordered him to stop walking. As the officers arrived on the
scene, all three pointed weapons at Anton: Moore his service
revolver, Degand a shotgun and Lehpamer his service revolver.
Lehpamer ordered Anton to take his hands out of his pockets and
raise them over his head. After Anton had been told to do so more
than once, he raised his hands over his head and then lowered
them. Moore grabbed Anton from behind and wrestled him to the
ground. Lehpamer assisted in restraining Anton until he was
handcuffed. Then the officers removed
the .45 caliber gun from the back of Anton's pants belt.
Anton claims defendants then started to drag him to the police
vehicle without permitting him to regain an upright position. On
reaching the police vehicle Lehpamer stepped on Anton's left leg
behind the knee, causing an injury that required him to undergo
surgery to repair torn ligaments.
Adequacy of an Available State Remedy
Defendants' entire argument is that for reasons marked out in
Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420
(1981), the adequacy of an available state law tort claim bars
Anton's suit here. Parratt involved a prisoner's Section 1983
claim against state officials for their negligence in losing a
hobby kit paid for with the prisoner's own funds. Justice
Rehnquist (speaking for the Court, through the proliferation of
other opinions clouds the precise contours of the Court's
holdings) first said the prisoner had satisfied three of the four
prerequisites to establish a violation of procedural due process
(451 U.S. at 536-37, 101 S.Ct. at 1913-14, footnote omitted):
Unquestionably, respondent's claim satisfies three
prerequisites of a valid due process claim: the
petitioners acted under color of state law; the hobby
kit falls within the definition of property; and the
alleged loss, even though negligently caused,
amounted to a deprivation. Standing alone, however,
these three elements do not establish a violation of
the Fourteenth Amendment. Nothing in that Amendment
protects against all deprivations of life, liberty,
or property by the State. The Fourteenth Amendment
protects only against deprivations "without due
process of law." Baker v. McCollan, 443 U.S. ,
at 145, 99 S.Ct. , at 2695 [61 L.Ed.2d 433].
Our inquiry therefore must focus on whether the
respondent has suffered a deprivation of property
without due process of law. In particular, we must
decide whether the tort remedies which the State of
Nebraska provides as a means of redress for property
deprivations satisfy the requirements of procedural
After extended discussion, Justice Rehnquist concluded "due
process" had been satisfied there because (1) Nebraska provided
a tort remedy adequate to redress the deprivation and (2) no
pre-deprivation hearing was possible (id. at 541, 101 S.Ct. at
Parratt — which after all dealt with a deprivation of property
caused by negligence — quickly ignited a controversy over whether
its analysis extended as well to deprivations of liberty and to
intentional acts. At least in this Circuit, the Parratt approach
does apply to deprivations of liberty interests. State Bank of
St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.), cert.
denied, ___ U.S. ___, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983);
Eberle v. Baumfalk, 524 F. Supp. 515, 517-18 (N.D.Ill. 1981).
But as to whether Parratt's treatment extends to intentional
acts, the courts differ sharply. Contrast McCrae v. Hankins,
720 F.2d 863, 869-70 (5th Cir. 1983) (Parratt does not apply to
intentional deprivations of property) and Brewer v. Blackwell,
692 F.2d 387, 394-95 & n. 11 (5th Cir. 1982) (Parratt does not
apply to intentional deprivations of liberty interests) with
Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983) (burden
is on defendants to show a pre-deprivation hearing is
impracticable to guard against an intentional deprivation
implementing official policy). Our own Court of Appeals has been
less than clear on this score. It has on occasion applied Parratt
to intentional deprivations*fn3 and has at other times
distinguished intentional deprivations from negligent actions in
applying Parratt,*fn4 but all its excursions into the area have
been undertaken without much discussion or analysis.
Section 1983 Claims Post-Parratt
Of course Anton does not complain that he should have been
given a hearing before excessive force was used in arresting him.
Nor does he say no state law tort remedy is at all available to
redress the alleged assault. Rather Anton's claim rests on the
premise some actions — intentional encroachments on liberty — are
constitutionally prohibited by the Fourteenth Amendment no matter
what procedure is used to redress the wrong.
Justice Holmes observed in New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921):
Upon this point a page of history is worth a volume
Nearly a quarter century has passed since Monroe v. Pape,
365 U.S. 167
, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (only Justice
Frankfurter dissenting) taught "under color" of state law — the
talismanic phrase in Section 1983 — was not intended to be
limited, in providing a remedy under federal law, only to
official conduct that could not be redressed in state law. Monroe
did so in the context of the classic*fn5
situation of an
intentional tort by police officers. It relied on the then
twenty-year-old doctrine of United States v. Classic,
313 U.S. 299
, 61 S.Ct. 1031
, 85 L.Ed. 1368 (1941), reinforced by Screws v.
United States, 325 U.S. 91
, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).
And each of those cases, too, had dealt with intentional misdeeds
of state officers.
Whatever Parratt may mean (see this Court's early doubts as
expressed in Eberle v. Baumfalk, 524 F. Supp. at 518 n. 4), from
the outset one of the most disturbing aspects of Justice
Rehnquist's opinion has been the potential for its expansion, by
the seemingly faultless logic of syllogistic analysis, to bar
federal relief for the very wrongs — the intentional deprivation
of rights to liberty — that have so long been viewed as the
central focus of Section 1983. Screws said (325 U.S. at 112-13,
65 S.Ct. at 1040-41), in language quoted in Monroe, 365 U.S. at
184-85, 81 S.Ct. at 482-83:
The construction given § 20 [18 U.S.C. § 242, the
criminal counterpart to Section 1983] in the Classic
case formulated a rule of law which has become the
basis of federal enforcement in this important field.
The rule adopted in that case was formulated after
mature consideration. It should be good for more than
one day only. We do not have here a situation
comparable to Mahnich v. Southern S.S. Co.,
321 U.S. 96 [64 S.Ct. 455, 88 L.Ed. 561], where we overruled a
decision demonstrated to be a sport in the law and
inconsistent with what preceded and what followed.
The Classic case was not the product of hasty action
or inadvertence. It was not out of line with the
cases which preceded. It was designed to fashion the
governing rule of law in this important field. We are
not dealing with constitutional interpretations which
throughout the history of the Court have wisely
remained flexible and subject to frequent
re-examination. The meaning which the Classic case
gave to the phrase "under color of any law" involved
only a construction of the statute. Hence if it
states a rule undesirable in its consequences,
Congress can change it. We add only to the
instability and uncertainty of the law if we revise
the meaning of § 20 [18 U.S.C. § 242] to meet the
exigencies of each case coming before us.
Congress did not act after Screws to change that rule. Monroe,
365 U.S. at 186, 81 S.Ct. at 483; and see Harlan, J., concurring,
id. at 192, 81 S.Ct. at 486-87. Congress has not so acted in the
twenty-odd years since Monroe. If principles of stare decisis are
to be abandoned because the claimed logic of Parratt's extension
requires it, let the Supreme Court do so. This Court will not.
This does not mean this Court subscribes to the views of those
that find Justice Rehnquist's opinion reconcilable with such
nonextension. In that respect, as Eberle indicated, this Court
shares the views later expressed by its colleague Judge Marshall
in Begg v. Moffitt, 555 F. Supp. 1344, 1358-60 (N.D.Ill. 1983).
But if no principled distinction can in fact be made between the
defendants' conduct and the plaintiffs' deprivations dealt with
in Parratt and in this case, this Court will not apply the
analysis of Justice Rehnquist's opinion to the
intentional-deprivation-of-liberty situation without a clear
signal from a Supreme Court majority (or from Congress by
repealing Section 1983).
Like concerns have led Judge Marshall to engage, in Begg, in an
extended exegesis of why Justice Rehnquist's procedural due
process analysis does not answer the question here. On that score
our Court of Appeals has not provided any guidance as to
precisely what substantive rights continue to be constitutionally
guaranteed, so as to be assertable via Section 1983 though other
state procedures may exist. See cases collected in Begg, 555
F. Supp. at 1363-65 n. 60 and State Bank of St. Charles, 712 F.2d
at 1147-48. But at a minimum it should seem the teaching of
Monroe continues post-Parratt to provide Section 1983 enforcement
of freedom from police officers' excessive use of force. Bauer v.
Norris, 713 F.2d 408, 411 (8th Cir. 1983); see also Lenard v.
Argento, 699 F.2d 874, 891 (7th Cir.), cert. denied, ___ U.S.
___, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983).
Indeed the Supreme Court itself has not applied Justice
Rehnquist's analysis in a situation conceptually similar to the
present one. Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S.Ct.
2452, 2458-59, 73 L.Ed.2d 28 (1982) (use of restraints on a
mentally retarded patient while confined in a state institution).
Youngberg illustrates the relevant question is not what
procedures are adequate either before force is used or to redress
the wrongful use of force, but rather how much force the state
officer can use without overstepping the constitutional line.
Begg persuasively argues the Justice Rehnquist analysis has no
place in answering that question.
It has consistently been Anton's position that the precise
issue in this case is whether that constitutional line was
crossed.*fn6 Feb. 25, 1983 Final Pretrial Order, Agreed
Statement of Contested Issues of Fact and Law; Anton Mem. 4;
Def.R. Mem. 2. On that subject neither party has tendered any
evidence at all, let alone evidence that could establish no
genuine issue of material fact exists. In this circumstance,
summary judgment is inappropriate under Rule 56(c).*fn7
Defendants' motion for summary judgment is denied. This case
will remain on the calendar for early trial.