The opinion of the court was delivered by: Moran, District Judge.
Plaintiff alleges a deprivation of her constitutional rights
under the Fourth and Fourteenth Amendments, specifically an
unreasonable seizure, an invasion of the security of her person,
and a denial of equal protection of the laws. She was arrested
for theft while standing in front of a store in the Chicago Loop.
She claims the defendants, in making the arrest, used excessive
force, allegedly by throwing her through a plate glass window of
the store, causing internal and external injuries including
permanent scarring. She brings her action under 42 U.S.C. § 1983.
Defendants have moved to dismiss the action as time-barred.
Plaintiff was arrested on July 15, 1981. She filed this action on
April 2, 1985, nearly four years later. When she filed, the law
of this circuit allowed a five-year limitation period for section
1983 actions in Illinois. Beard v. Robinson, 563 F.2d 331 (7th
Cir. 1977). Two weeks after she initiated this suit the Supreme
Court decided Wilson v. Garcia, 471 U.S. ___, 105 S.Ct. 1938, 85
L.Ed.2d 254 (1985). Defendants argue that Garcia in effect
overruled Beard and placed section 1983 actions in Illinois under
the limitation for personal injury, Ill.Rev.Stat. ch. 110, ¶
13-202, a two-year period.
This court disagrees on two grounds. As the following
discussion will show, Garcia's holding, applied to Illinois,
requires the use of Ill.Rev.Stat. ch. 110, ¶ 13-205, the
five-year statute of limitations. And even if that were not true,
any change in the appropriate statute would not be applied
retroactively to bar this claim.
I. CHOOSING A LIMITATION PERIOD
Congress did not give the Civil Rights Acts of the
reconstruction era their own statutes of limitations. Rather,
42 U.S.C. § 1988, passed with them, directs federal courts generally
to refer to the applicable state law whenever no federal rule of
decision exists. State law will fill the gap
unless it is inconsistent with the federal interest. Burnett v.
Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984). The
Supreme Court has repeatedly held that state statutes of
limitations are ordinarily part of that applicable state law.
Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64
L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, Inc.,
421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). A federal court
hearing a section 1983 action therefore borrows "the most
analogous state statute of limitations" from the law of the state
in which it sits. Tomanio, 446 U.S. at 488, 100 S.Ct. at 1797.
The question of which statute to borrow has not been a problem
in Illinois for several years. Anticipating at least part of the
Supreme Court's holding in Garcia, the Seventh Circuit in effect
adopted "a simple, broad characterization of all § 1983 claims"
for limitation purposes, 471 U.S. at ___, 105 S.Ct. at 1945. In
Beard, 563 F.2d 331, the Court of Appeals held that the five-year
statute of limitations for "civil actions not otherwise provided
for," Ill.Rev.Stat. ch. 110, ¶ 13-205, governed all Illinois
claims under the Civil Rights Acts. Other states, however, have
not been so fortunate. Several circuits chose a statute of
limitations by analyzing the particular facts of each section
1983 claim, determining which common law action it most resembled
and then selecting a statute for that claim from the state's
array. The process would then begin anew for the next claim. See,
e.g., Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir. 1983);
Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983).
The Supreme Court, in Garcia, facing evidence that such an
approach "inevitably breeds uncertainty and time-consuming
litigation," 471 U.S. at ___, 105 S.Ct. at 1945, concluded, much
as the Seventh Circuit had earlier, that section 1988 "is fairly
construed as a directive to select, in each state, the one most
appropriate statute of limitations for all § 1983 claims." Id. at
1947. Cf. Beard, 563 F.2d at 337. Toward that end the Court
decided that "all § 1983 claims should be characterized in the
same way for limitation purposes," and further that the
characterization should be as a tort action "conferring a general
remedy for injuries to personal rights." Garcia, 471 U.S. at ___,
___, 105 S.Ct. at 1945, 1948. It anticipated that its decision
would be a "simple approach" to limitation problems. Id. at 1947.
In those states which have one statute which governs all, or at
least most, tort actions for injuries to personal rights,
applying the approach has been simple. The precise holding of
Garcia was to affirm the Tenth Circuit's choice of New Mexico's
three-year limitation on actions "for an injury to the person or
reputation of any person" for section 1983 actions in New Mexico.
471 U.S. at ___, 105 S.Ct. at 1949. Similarly, applying Garcia to
Pennsylvania, the Third Circuit was able to select a two-year
limitation covering "assault, battery, false imprisonment, false
arrest, malicious prosecution or malicious abuse of
process . . . [or] an action to recover damages for injuries to
the person or for the death of an individual caused by the
wrongful act or neglect or unlawful violence or negligence of
another." Knoll v. Springfield Township School District,
763 F.2d 584 (3d Cir. 1985).*fn1
Many states, however, provide more than one limitation period
for different types of personal injury claims. In these
states the court must closely examine the state's
characterization of its own statutes of limitations to determine
which of these is the one most appropriate for, or analogous to,
the section 1983 general remedy for injuries to personal rights.
Like any other application of state law under section 1988, a
statute of limitations must still be reasonably consistent with
the federal interest. "An appropriate limitations period must be
responsive to [the] characteristics of litigation under the
federal statute. A state law is not `appropriate' if it fails to
take into account . . . policies that are analogous to the goals
of the Civil Rights Acts." Burnett, 468 U.S. at ___, 104 S.Ct. at
2930. So, for example, the Eleventh Circuit, applying Garcia to
Alabama, found that a superficial resemblance between the phrase,
"personal injury," and the one-year limitation governing "any
injury to the person or rights of another not arising from
contract and not specifically enumerated in this section,"
Ala.Code § 6-2-39(a)(5) (1975), was not controlling. Alabama
courts had defined the choices among its statutes of limitations
in accordance with the old forms of action, and that statute
covered only actions brought as trespass on the case. Given the
legislative history of section 1983, the court found that the
six-year statute, "for any trespass to person or liberty, such as
false imprisonment or assault and battery," for actions in
trespass, was far more appropriate to section 1983 claims. Jones
v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir. 1985); Ala.Code §
The Tenth Circuit, facing a similar problem with Colorado
statutes of limitations, bypassed both a one-year statute for
trespass actions, including assault, battery and false
imprisonment, and a six-year statute for actions on the case.
Unlike Alabama, Colorado also provided a three-year period for
"all other actions of every kind for which no other period of
limitation is provided by law." Colo.Rev.Stat. § 13-80-108(1)(b)
(1973). Given the limits Colorado courts had placed on the other
statutes, this residuary limitation was the most appropriate for
an action for injury to the rights of another. McKay v. Hammock,
730 F.2d 1367, 1370 (10th Cir. 1984).*fn2 See also Gates v. Spinks,
771 F.2d 916 (5th Cir. 1985) (Mississippi, one-year limitation
for intentional tort preferable to six-year residuary
limitation); Mismash v. Murray City, 730 F.2d 1366 (10th
Cir. 1984), cert. denied 471 U.S. ___, 105 S.Ct. 2111, 85
L.Ed.2d 476 (1985) (Utah, four-year residuary limitation
preferable to one-year statute for libel, slander, assault,
battery, false imprisonment and seduction).
The case at bar therefore presents the question of whether
Illinois is a state where the application of Garcia will be
simple, as in New Mexico and Pennsylvania, or will require
analysis of state law for a choice between statutes, as in
Alabama and Colorado. Until recently, most courts facing the
question assumed that Illinois
was in the former category. Garcia had apparently overruled Beard
and required the use of Ill.Rev.Stat. ch. 110, ¶ 13-202, a
two-year statute which governs, among other things, "actions for
damages for an injury to the person." See, e.g., Smith v. City of
Chicago, 769 F.2d 408, 411 (7th Cir. 1985) (dictum); Winston v.
Sanders, 610 F. Supp. 176 (C.D.Ill. 1985); Moore v. Floro,
614 F. Supp. 328 (N.D.Ill. 1985). However, a recent opinion from
Judge Shadur of this district argues persuasively that while the
reasoning of Beard cannot survive Garcia, its exact holding can
and should. Like Alabama, Illinois has defined the phrase,
"injury to the person," in a way which makes it irreconcilable
with a general remedy for injuries to personal rights. Like
Colorado, in the face of this definition, the statute for "civil
actions not otherwise provided for" is still the one most
appropriate statute of limitations for all section 1983 claims.
Shorters v. City of Chicago, 617 F. Supp. 661 (N.D.Ill. 1985).
The conclusion follows from an analysis of both statutory
language and case law. Illinois is, first of all, a state which
provides different periods of limitations for different types of
injuries to personal interests. Shorters, 617 F. Supp. at 664; cf.
Gates, 771 F.2d at 919. While paragraph 13-202 sets a two-year
limit for "an injury to the person," a separate statute,
paragraph 13-201, provides for "actions for slander, libel, or
for publication of matter violating the right of privacy."
Illinois' limitations scheme is thus readily distinguishable from
that of New Mexico, with which Garcia directly dealt. Also,
paragraph 13-205, in addition to functioning as the residuary
statute, covers actions on unwritten contracts, awards of
arbitration and injuries to property. Actions brought on section
1983 could arise and have arisen from facts which, characterized
as torts, fit any of these three categories. See, e.g., Alliance
to End Repression v. Rochford, 407 F. Supp. 115 (N.D.Ill. 1975)
(invasion of privacy); North American Cold Storage Co. v. Cook
County, 468 F. Supp. 424 (N.D.Ill. 1979) (discriminatory tax
assessment). Given this choice, a court must look to Illinois'
construction of its own statutes to determine which one best fits
a section 1983 action.
Secondly, Illinois characterizes claims for limitation purposes
precisely on the nature of the interest affected, rather than the
theory of recovery or the form of the action. See Hundt v.
Burhans, 13 Ill.App.3d 415, 300 N.E.2d 318 (3d Dist. 1973);
Handtoffski v. Chicago Consolidated Traction Co., 274 Ill. 282,
113 N.E. 620 (1916). For example, an airline flight attendant had
spilled a pot of hot coffee on a passenger. He attempted to
characterize his action as a suit for breach of his contract for
safe transportation, in an effort to evade the two-year statute
of limitations. But since his claim arose from an invasion of his
interest in freedom from physical harm, the court held that his
claim was governed by the personal injury limitation. Schreiber
v. Eastern Airlines, Inc., 38 Ill.App.3d 556, 348 N.E.2d 218 (1st
Dist. 1976). On the other hand, when a husband sued the driver
who caused a collision from which his wife had sustained injury,
to recover her medical expenses, the suit came under the
five-year residuary statute. He had not been injured; rather, he
was suing for "damages occasioned to him by reason of his marital
relationship to the injured party." Roth v. Lundin, 237 Ill. App. 456,
458 (1st Dist. 1925). This approach to characterization
applies even when the cause of action is statutory in origin. In
Neikirk v. Central Illinois Light Co., 128 Ill.App.3d 1069,
471 N.E.2d 1027, 84 Ill.Dec. 261 (3d Dist. 1984), a snowmobile rider
injured in a collision with an unlighted utility pole sued under
the Public Utility Act. His personal injury claims were barred by
the two-year limitation, but his property damage claim survived
under the five-year statute.
The result of such an approach is that under Illinois law,
"injury to the person" in paragraph 13-202 and its predecessors
means only physical injury and its direct consequences. Shorters,
617 F. Supp. at 665. The statutory language itself leads to such
an interpretation. Since libel, slander and invasion to privacy
have a separate statute, and other actions such as false
imprisonment and malicious prosecution are separately listed in
the same statute, these rights must not be encompassed by "injury
to the person." Therefore, as long ago as Bassett v. Bassett,
20 Ill. App.? 543, 548 (1887), the court concluded that if the phrase
"were intended to include all injuries to personal and relative
rights, the legislature would not have considered it necessary in
the same act to provide specially for a period of time in which
an action should be brought for many of the injuries to such
rights . . . ...