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.
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
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.
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
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.
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
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 ...