I. Injunctive Relief
Defendants initially argue that plaintiffs fail to present an Article III "case or controversy" with respect to the requested injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 1665, 75 L. Ed. 2d 675 (1983). That is, they maintain that even in a free speech context "'past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse affects.'" Id. (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 675-76, 38 L. Ed. 2d 674 (1974)).
The Lyons decision establishes a two-part test for determining when a request for injunctive relief states a case or controversy. Id. 461 U.S. at 105-06, 103 S. Ct. at 1667. First, the plaintiff must show that he is likely to have another encounter with the defendant. Id. at 106, 103 S. Ct. at 1667. Second, he must demonstrate that he will again be subjected to the complained of practice. Id.
In Lyons, the plaintiff sought an injunction prohibiting the use by police officers of "chokehold" restraints except in certain "deadly force" situations. Id. at 98, 103 S. Ct. at 1663. The Supreme Court ruled that the plaintiff had no standing to seek the injunction because of "the speculative nature of his claim that he will again experience injury as the result of that practice even if continued." Id. at 109, 103 S. Ct. at 1669.
Here, it is virtually certain that Flood will have future encounters with the defendants. As president of the police union, Flood is in contact with various members of the Cook County Sheriff's office nearly every day. As an outspoken observer, he is likely to continue to comment on the policies and practices of the O'Grady administration. The first prong of the Lyons test is easily satisfied; clearly, Flood's continued interaction with the defendants is quite predictable.
As to the second part of the test, the required certainty of injury need not be as absolute in a First Amendment setting as that set forth in Lyons in an "excessive force" circumstance. See generally Fisher, Caging Lyons: The Availability of Injunctive Relief in Section 1983 Actions, 18 Loy. U. Chi. L. J. 1085 (1987). Indeed, "within the context of the First Amendment, the Court has enunciated other concerns that justify a lessening of prudential limitations on standing." Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S. Ct. 2839, 2847, 81 L. Ed. 2d 786 (1984). Moreover, that no further incidents have occurred since the filing of this suit does not suggest that no further incidents will ever occur; "protestations or repentance and reform timed to anticipate or blunt the force of a lawsuit offer insufficient assurance that the practice sought to be enjoined will not be repeated." James v. Stockham Valves & Fittings Co., 559 F.2d 310, 354-55 (5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S. Ct. 767, 54 L. Ed. 2d 781 (1978).
Defendants' related argument that no injunction is necessary because Flood has continued to carry on with his campaign of criticism and dissent is without merit. To argue that the plaintiffs' persistence in exercising their constitutional rights voids any claim they might make for a protective injunction is illogical. Trotman v. Board of Trustees, 635 F.2d 216, 227 (3d Cir. 1980), cert. denied, 451 U.S. 986, 101 S. Ct. 2320, 68 L. Ed. 2d 844 (1981). The protections of the First Amendment are as equally applicable to the brave, those "who overcome their inhibitions and fears to proceed on a course they believe constitutionally protected," as to the timid. Id.
That being said, we take judicial notice that the next election for Cook County Sheriff will be held November 6, 1990. The plaintiffs' complaints are clearly against the alleged political agenda of the incumbent sheriff and several of his key aides and not addressed to any general policy of the office of sheriff. Should Sheriff O'Grady not be re-elected in the upcoming election, plaintiffs' claim for injunctive relief will be moot and dismissed at such time. Cf. Martinez v. Winner, 771 F.2d 424, 436 (defendant federal district judge resigned from office, rendering injunctive relief claim against him moot), modified in part, and reh'g denied in part, 778 F.2d 553 (10th Cir. 1985), vacated on other grounds sub nom. Tyus v. Martinez, 475 U.S. 1138, 106 S. Ct. 1787, 90 L. Ed. 2d 333 (1986).
The defendants' motion for summary judgment is denied as to the injunctive relief issue.
Without citation of authority, defendants argue that "conspiracies to deprive individuals of their constitutional rights are more properly brought pursuant to 42 U.S.C. § 1985(3)," and thus ignore the fact that conspiracy claims may be brought under 42 U.S.C. § 1983, as plaintiffs do here. See, e.g., O'Donnell v. Village of Downers Grove, 656 F. Supp. 562, 568 (N.D. Ill. 1987) ("An action for conspiracy may be maintained under 42 U.S.C. § 1983."); see also Strength v. Hubert, 854 F.2d 421, 425 (11th Cir. 1988). Thus, the authority defendants do cite relative to the intricacies of § 1985(3) conspiracy claims is irrelevant, since plaintiffs do not allege a conspiracy under that section of the law.
The elements of a § 1983 conspiracy are well-settled in the Seventh Circuit. Pontarelli Limousine, Inc. v. City of Chicago, 704 F. Supp. 1503, 1509 (N.D. Ill. 1989). There are two requirements. First, it must be shown that there existed "an express or implied agreement among defendants to deprive plaintiff of his or her constitutional rights"; and, second, that such agreement resulted in "actual deprivations of those rights in the form of overt acts in furtherance of the agreement." Id. (citing Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir.), cert. denied, 486 U.S. 1043, 108 S. Ct. 2035, 100 L. Ed. 2d 620 (1988)).
After examining the complaint, affidavits, depositions and briefs in this case, and after drawing all inferences in favor of the plaintiffs, as is appropriate in adjudicating defendants' summary judgment motion, we think a finding for the defendants at this stage of the litigation is inappropriate.
A reasonable factfinder could find that defendants agreed or had an understanding to deprive the plaintiffs of their constitutional rights. Therefore, we deny their summary judgment motion as to the conspiracy allegations.
III. Patricia and Mary Flood's "First Incident" Claims
Mere physical proximity to an altercation or confrontation taking place even in one's own home does not abridge one's legitimate liberty interests in personal security. Plambeck v. Stone, 662 F. Supp. 298, 301 (N.D. Ill. 1986). Plaintiffs' attempted distinctions between "First Amendment retaliation" and abridgement of "due process liberty interests" are immaterial in this context, particularly since what they allege in their complaint is grounded in the latter. First Amended Complaint paras. 18-19 ("physical danger"; "physical safety").
Plambeck, therefore, is essentially indistinguishable from the facts alleged in this case. Indeed, this is, if anything, a less troubling factual scenario than that in the previous case. In Plambeck, two plainclothes policemen went to the plaintiffs' home to arrest one of the plaintiffs. Plambeck, 662 F. Supp. at 299. A fight broke out between the officers and the intended arrestee when the officers, who had arrived at the plaintiffs' home in an unmarked police vehicle, declined to produce an arrest warrant. Id. At some point, various members of the Plambeck family, including at least two minor children, became embroiled in the melee. Id. at 299-300. Eventually, another police officer arrived and helped restore order; three members of the family were arrested and charged with various forms of battery. Id. at 300.
Two members of the family sued under § 1983, alleging that the incidents at their home caused them emotional and psychological stress. Id. The court dismissed the claim, ruling that their "legitimate liberty interests were not abridged by their proximity to the altercation . . . ." Id. at 301. Patricia and Mary Flood's claim regarding the first incident cannot be meaningfully distinguished from the claim dismissed in Plambeck ; defendants' summary judgment motion as to that issue is granted.
IV. Qualified Immunity
Defendants are shielded from individual liability only if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982); accord Williams v. Lane, 851 F.2d 867, 882 (7th Cir. 1988), cert. denied, 488 U.S. 1047, 109 S. Ct. 879, 102 L. Ed. 2d 1001 (1989). Generally speaking, the doctrine of qualified immunity is designed "to provide government officials with the ability 'reasonably [to] anticipate when their conduct may give rise to liability for damages.'" Anderson v. Creighton, 483 U.S. 635, , 107 S. Ct. 3034, 3042, 97 L. Ed. 2d 523 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S. Ct. 3012, 3019, 82 L. Ed. 2d 139 (1984)).
Qualified immunity is an affirmative defense, and the defendants have the burden of proof. Williams, 851 F.2d at 882; see also Klein v. Ryan, 847 F.2d 368, 369 (7th Cir. 1988). Reasonably competent police officials know that they may not engage in the kinds of acts plaintiffs allege "in retaliation for the exercise of their first amendment rights . . . ." Abel v. Miller, 824 F.2d 1522, 1535 (7th Cir. 1987). Defendants' motion for summary judgment on this issue is denied.
V. Equal Protection
Defendants fail to address the precise nature of plaintiffs' equal protection claims. They maintain that those claims should fall because "no allegations of discrimination based on membership in a particular class has been alleged by the plaintiffs." Reply Brief at 9. The Supreme Court, however, has long held that governmental action may violate equal protection rights in two ways -- when that action "impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class." Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 2566, 49 L. Ed. 2d 520 (1976) (emphasis added; footnotes omitted). Plaintiffs here allege an impermissible interference with the exercise of their rights of free expression. Defendants do not offer any basis for granting their motion for summary judgment as to this issue. Accordingly, it is denied.
For the foregoing reasons, we deny defendants' summary judgment motion as to the injunctive relief, conspiracy, qualified immunity, and equal protection issues. We grant summary judgment with respect to Patricia and Mary Flood's "first incident" claims. It is so ordered.