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HAWK v. PERILLO

October 31, 1985

KREIGH HAWK AND KEVIN COLEMAN, PLAINTIFFS,
v.
LOUIS PERILLO; MICHAEL TIMOTHY; JAMES TIMOTHY; OFFICER RICHARD WAGNER; OFFICER EDWARD LENTI; CARMS RESTAURANT; JOHN DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Ann C. Williams, District Judge.

  MEMORANDUM OPINION AND ORDER

The complaint filed herein arises out of a violent conspiratorial attack that a group of white males allegedly perpetrated against plaintiffs on June 25, 1983. In addition to charging the individual assailants with civil rights violations, the complaint charges also that two Chicago police officers, by their post attack inaction, violated plaintiffs' civil rights under the Thirteenth and Fourteenth Amendments and 42 U.S.C. § 1981, 1983 and 1985(2) and (3). This action is presently before the court on a motion to dismiss filed by the two police officers. For the reasons set forth in this memorandum opinion, the motion to dismiss is granted in part and denied in part.

I

In the early evening of June 25, 1983, plaintiffs Kreigh Hawk ("Hawk") and Kevin Coleman ("Coleman"), both of whom are black males, together with a third individual, Michael Hurley,*fn1 had just departed from a Chicago restaurant when they encountered a group of approximately twelve white males. The group of white males yelled racial slurs and threats of physical violence at plaintiffs. Coleman returned to the restaurant to telephone the police. Hawk and Hurley remained outside where they were attacked and severely beaten by the group of white males. Throughout the attack, the group of white males continued to yell racial insults at Hawk and Hurley.

After the beating had ceased, Edward Lenti and Richard Wagner ("Police Defendants"), two Chicago Police officers, arrived at the scene of the attack and interviewed Hawk and Hurley. Hawk and Hurley provided detailed descriptions of two of the assailants, which prompted the Police Defendants to state that they were familiar with the group that had perpetrated the attack. The Police Defendants then described two other individuals who Hawk indicated took part in the attack.

During this discussion, three participants in the attack were standing on the sidewalk nearby. Hawk and Hurley identified the three men to the Police Defendants who then approached the three men. One of Police Defendants, leaning close to the men, held a conversation with them. After this conversation, two of the men fled. The Police Defendants failed to order the fleeing men to halt. Further, the Police Defendants did not pursue the fleeing men until after they had run into an alley. The Police Defendants then gave chase, running up the alley, only to return shortly thereafter. They explained that they had lost the fleeing men. After returning from the chase, the Police Defendants did not interview anyone at the scene of the attack.

Plaintiffs allege also that the Police Defendants knew at least some of the attackers prior to the attack. They allegedly knew that the attackers had been involved in similar attacks in the past and that the attackers belonged to a club or gang which was motivated by racial animus.

II

The Police Defendants argue initially that plaintiffs have failed to state a claim under 42 U.S.C. § 1983.*fn2 A cause of action under Section 1983 has two elements: (1) that the defendants acted under color of state law, and (2) that defendants' actions deprived the plaintiff of a constitutional right, privilege or immunity. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). The Police Defendants do not contest that they were acting under color of state law. Rather, the Police Defendants assert that the acts alleged in the complaint cannot, as a matter of law, constitute a deprivation of a constitutional right.

The Police Defendants characterize plaintiffs' Section 1983 claim as asserting a constitutional right to police protection. They contend, citing several cases in support, that the constitution does not impose any duty on police to intervene or investigate a crime. In Beard v. O'Neal, 728 F.2d 894 (7th Cir. 1984), cert. denied 469 U.S. 825, 105 S.Ct. 104, 83 L.Ed.2d 48 (1984), the court found that an FBI informant, who had accompanied a Chicago police officer on the night the officer performed a murder contract, did not have a constitutional duty to prevent the murder. Id. at 899. In Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984), a police officer failed either to aid the occupants of a burning car or to call an ambulance. The fire department failed to discover the car was occupied before extinguishing the fire. The court held that there is no constitutional right to competent rescue services. Id. at 1203. In Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982), the court held that the state does not have a constitutional duty to protect citizens from the violent acts of released mental patients. Id. at 618-19. Similarly, in Fox v. Custis, 712 F.2d 84 (4th Cir. 1983), the court held that the constitution does not impose a duty on the state to protect citizens from the violent acts of a parolee. Id. at 88. Finally, the Police Defendants cite Simack v. Risley, No. 84 C 8689, slip op. (N.D.Ill. April 12, 1985) [Available on WESTLAW, DCTU database], in which the police stood by and watched while the plaintiff was beaten and robbed by three men. The court dismissed the complaint, stating that, "lack of affirmative action by police officers when a private citizen's life or property is in jeopardy is not a constitutional violation." Id. at 2. These cases, while instructive, are not determinative of the issue here. All of these cases deal with state actors failing to prevent or intervene in situations where a citizen's life is in danger. The complaint here does not rest on such allegations. Indeed, as the complaint clearly states, the Police Defendants did not arrive on the scene until after the attack occurred.

Contrary to the Police Defendants analysis, this court interprets plaintiffs complaint as alleging that the Police Defendants failed to act because plaintiffs are black. These allegations state a claim under Section 1983 for violations of the plaintiffs' Fourteenth Amendment right to equal protection. As stated by the Court in Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984), "[i]f the defendants had withheld protection from the plaintiffs' decedents because they were blacks . . . there would be an equal protection issue." Id. at 1203. See also Smith v. Ross, 482 F.2d 33 (6th Cir. 1973).

Further, if plaintiffs' allegations are true, and they are of course taken as true for purposes of this motion to dismiss, then the Police Defendants actions are precisely the type of actions that motivated Congress to pass Section 1983. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court reviewed the legislative history of Section 1983. As the Court stated, "[i]t was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this `force bill'." Id. at 174-75, 81 S.Ct. at 477. The Court summarized its reading of the legislative history, stating "[w]hile one main scourge of the evil — perhaps the leading one — was the Ku Klux Klan, the remedy created was not a remedy against it or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law." Id. at 175-76, 81 S.Ct. at 477-78 (emphasis in original).

Turning to the plaintiffs' Section 1983 claim for violations of the Thirteenth Amendment, the Police Defendants argue that their actions "can hardly be read" to amount to slavery or involuntary servitude. The Thirteenth Amendment not only prohibits slavery and involuntary servitude, but also gives Congress the power to prohibit actions that impose a "badge of slavery" on citizens. James v. Alfred H. Mayer Co., 392 U.S. 409, 439-43, 88 S.Ct. 2186, 2203-05, 20 L.Ed.2d 1189 (1968). But see City of Memphis v. Greene, 451 U.S. 100, 126 n. 40, 101 S.Ct. 1584, 1599 n. 40, 67 L.Ed.2d 769 (1981). However, in the realm of equal protection, the Thirteenth Amendment offers no protection not already provided under the Fourteenth Amendment. Cf. Washington v. Finlay, 664 F.2d 913, 927 (4th Cir. 1981), cert. denied, 457 U.S. 1120, 102 S.Ct. 2933, 73 L.Ed.2d 1333 (1982) (voting rights under Thirteenth, Fourteenth and Fifteenth Amendments). Consequently, plaintiffs' claims under Section 1983 for violations of their Thirteenth Amendment rights will be dismissed.

The Police Defendants argue next that plaintiffs have failed to state a claim under 42 U.S.C. § 1981.*fn3 A claim under Section 1981, as plaintiffs and the Police Defendants agree, requires allegations of a racially discriminatory intent or animus. Bell v. City of Milwaukee, 746 F.2d 1205, 1232 (7th Cir. 1984). As the Police Defendants correctly point out, plaintiffs must allege at least some facts that show that their race was the reason for the Police Defendants' inaction. See Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982).

After closely reviewing the pleadings, this court finds that plaintiffs have alleged sufficient facts to show that plaintiffs' race was the motivating force behind the Police Defendants' inaction. In particular, the court notes that the Police Defendants obviously knew that plaintiffs were black and that plaintiffs were the victims of a vicious attack at the hands of a group of white males. Plaintiffs allege that the Police Defendants knew certain individuals who perpetrated the attack, knew they belonged to racially motivated gang and knew they had previously engaged in similar attacks. The Police Defendants, however, failed to apprehend the attackers and even allegedly allowed two attackers to escape. The reasonable inference is that racial animus was the reason for the Police Defendants' inaction.

The Police Defendants assert also that plaintiffs have failed to state a claim for conspiracy under 42 U.S.C. § 1985.*fn4 The Police Defendants argue that plaintiffs charge of conspiracy is supported only by conclusory allegations without factual support. This court cannot agree. The facts recited in the preceding section support an allegation of conspiracy. In addition, plaintiffs' allege that one of the Police Defendants held a "private" conversation with several individuals identified as participating in the attack. Shortly after this conversation, two attackers fled with the Police Defendants giving only belated and futile pursuit. Plaintiffs have pleaded enough facts to make out a claim for conspiracy under Section 1985.

Finally, the Police Defendants assert that plaintiffs have failed to make out a claim under Illinois common law. Plaintiffs do not identify in their complaint what common law theory they are pursuing. However, in their brief, plaintiffs indicate that their common law theory of liability is obstruction of justice. Under Illinois law, obstruction of justice is a crime. See ILL. REV. STAT. ch. 38, §§ 31-1 et seq. (1973). This court, however, has not found any case in which a private plaintiff was found to state a civil claim for obstruction of justice. Cf. John Allan Co. v. Brandow, 59 Ill. App.2d 328, 207 N.E.2d 339 (1965) (civil actions for perjury against public policy). Plaintiffs common law claim is consequently dismissed.

For the reasons set forth previously in this opinion, it is hereby ordered that the motion to dismiss filed by defendants Edward Lenti and Richard Wagner is granted with respect to plaintiffs' claims for violations of the Thirteenth Amendment and Illinois ...


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