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September 25, 1984


The opinion of the court was delivered by: Kocoras, District Judge.


In a paroxysm of hyperbole, the plaintiff has described this as a case which "shocks the conscience [and] is fundamentally offensive to civilized society." Complaint ¶¶ 17, 23. He is right in a very limited sense, but not at all in the way he thinks.

It can be said with a substantial degree of certainty that when Representative James Madison, who was later to become the fourth president of the United States and who has been called the "Father of the Constitution," stood before the First Congress on June 8, 1789 and explained his proposed bill of rights, neither he nor any of our nation's other forefathers had a situation like this in mind. Nor is it even remotely likely that anyone conceived of something like this in those dark days following the Civil War when Congress enacted section 1 of the Ku Klux Klan Act of 1871 (now 42 U.S.C. § 1983) to stem the tide of lynchings and other horrors perpetrated by the nightriders against the newly-freed slaves and their supporters. Only after 1976, when Congress passed a law that virtually guaranteed a plaintiff an award of attorney's fees if he managed to "prevail" in a civil rights case, did lawsuits like this become not only thinkable but commonplace. With an assurance that their fees would be paid by the defendant if their client "prevailed" in any way, including settlement of a bogus suit for its nuisance value, and with no appreciable downside (losing plaintiffs almost never have to pay a victorious defendant's fees under the statute), lawyers flocked to the federal courts to file "civil rights" cases.*fn1 Some good has come of this, of course, but many of these so-called civil rights actions have proven to have nothing whatever to do with civil rights as that term is normally understood. Instead, the Constitution has been debauched as lawyers, "not overly hindered by the courts,"*fn2 have endeavored to transform even the most petty complaints against local governments into federal cases of constitutional dimension. Rather than vindicating fundamental rights, such lawsuits over the trivial annoyances of everyday life actually diminish public esteem for the Constitution.*fn3 When every misstep by government, no matter how slight, is seized upon as creating a cause of action entitling its holder to a chance at receiving a cash jackpot from a federal jury, plus an award of attorney's fees as an automatic bonus, important values are lost and the Constitution comes to be looked upon as a sort of lottery ticket.

This "civil rights" case arises because a sidewalk had some snow on it one night last winter. Because there was snow on the sidewalk, Edward P. Newman, a resident of the Chicago suburb of Hinsdale, decided to walk in the street. A policeman came along and told Newman to walk on the sidewalk. Newman disobeyed the officer and continued to walk in the street. The officer then issued Newman a traffic ticket for walking on a roadway when he should have been using the sidewalk, a violation of the Illinois Vehicle Code. Ill. Rev.Stat. ch. 95½, ¶ 11-1007(a). A few days later Newman complained to the chief of police that he did not deserve the ticket, but despite Newman's protestations of innocence the chief "failed to terminate or otherwise voluntarily dismiss the citation." Complaint ¶ 20. Two weeks after griping unsuccessfully to the chief, Newman showed up in traffic court and the ticket was dismissed.

That is it. That is the incident Newman says "shocks the conscience [and] is fundamentally offensive to civilized society." He was not beaten by the police.*fn4 He was not compelled to strip naked and have a policeman's finger stuck up his anus to check for contraband.*fn5 He was not locked in a cell for a lengthy period without being taken before a magistrate.*fn6 He simply got a ticket. Now, having managed to win in his local traffic court, Newman has taken the offensive by filing this federal lawsuit under 42 U.S.C. § 1983 in the United States District Court for the Northern District of Illinois. His two-count complaint is based on the notion that the policeman violated his fourth amendment rights by stopping him to issue the traffic ticket. To redress this supposed injustice Newman demands $150,000 in damages in each of his two counts. Named as defendants are the policeman who wrote the ticket, the chief of police, and the Village of Hinsdale. The defendants have moved to dismiss the complaint.*fn7

By rights, if everything was on the up-and-up, Newman would have lost in traffic court, and regardless of what happened in traffic court could not even have argued that he had grounds for this "civil rights" suit, had the ticket been written prior to January 1, 1976. Before that date the Illinois Vehicle Code stated:

  Where sidewalks are provided it is unlawful for any
  pedestrian to walk along and upon an adjacent roadway
  except at a crosswalk.

Ill.Rev.Stat. ch. 95½, § 11-1007(b). This provision was amended effective January 1, 1976 to read as follows:

  Where a sidewalk is provided and its use is
  practicable, it shall be unlawful for any pedestrian
  to walk along and upon an adjacent roadway.

Ill.Rev.Stat. ch. 95½, ¶ 11-1007(a). Newman's entire lawsuit rests upon his allegation that the sidewalk on which he otherwise should have been walking was "obstructed by and rendered impassable from large amounts of snow which had previously fallen thereon during the previous twenty-four hours."*fn8 Complaint ¶ 9. This accumulation of snow, he argues, deprived the policeman of probable cause to stop him for unlawfully walking in the street under the amended version of the statute.

The 1976 amendment was enacted, in the words of Illinois State Senator Hall, as one of a "whole series of bills that have to do with the safety factor." H.B. 2210, 79th Ill.Gen. Assembly, 1st Sess., 1975 Senate Debates June 19, 1975, p. 205. The overarching purpose of this legislation was thus to increase the safety of pedestrians, not to enhance their convenience.*fn9 By inserting the phrase "and its use is practicable" into the statute that requires pedestrians to use sidewalks where they are provided, the Illinois legislature did not intend to give pedestrians a license to take to the streets after every snowfall. "Practicable," as used in this statute, means "performable, feasible, possible," Black's Law Dictionary 1055, or "capable of being put into practice, done, or accomplished," Webster's Third New International Dictionary 1780; Random House College Dictionary 1040. When the distinction between this word and "practical" is kept in mind, see, e.g., H.W. Fowler, A Dictionary of Modern English Usage 469 (2d ed. 1965); H. Shaw, Dictionary of Problem Words and Expressions 187-88 (1975); Houghton Mifflin Company, The Written Word 282-83 (1977), it is apparent that a natural accumulation of snow on a sidewalk is not the type of obstacle the legislature contemplated as entitling pedestrians to walk in the street. In contrast to a sidewalk that is torn up or barricaded because of construction work, for example, a sidewalk that is merely covered with snow may still be used, albeit with some difficulty if the snow is deep and has not been packed down. But while it may be inconvenient in some instances to walk on a snow covered sidewalk, it is nevertheless "practicable," and it is obviously much safer than walking in the street, where only a narrow lane may have been plowed to accommodate vehicular traffic and what little roadway is available may be covered with ice.

Accordingly, since it was "practicable" as a matter of law for Newman to use a sidewalk that had only a natural accumulation of snow lying on its surface, he had no right to walk in the street, and the policeman had probable cause to stop him and issue the ticket. The fourth amendment claim against the policeman is therefore without merit, and the derivative claims against the police chief and the village also melt away.

For the foregoing reasons the defendants' motions to ...

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