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BERNDT v. JACOBI

December 16, 1991

MARK BERNDT, Plaintiff,
v.
CHIEF OF POLICE ERNEST A. JACOBI, Defendant.



The opinion of the court was delivered by: BRIAN BARNETT DUFF

 Introduction

 Mark Berndt, a police officer employed by the City of Evanston, Illinois, brings this action under 42 U.S.C. ยง 1983 against Ernest A. Jacobi, Evanston's Chief of Police. His amended complaint asserts that he was disciplined in retaliation for having brought (along with his union) a prior civil rights case against the City of Evanston. According to Berndt, the allegedly retaliatory disciplinary action taken against him violated rights protected by the First and Fourteenth Amendments.

 Defendant Jacobi has moved under Rule 12(b)(6) to dismiss the complaint. Defendant's motion is granted.

 Facts1

 The plaintiffs in CCPA and Berndt v. Evanston alleged the following facts. At approximately 11:45 p.m. on October 29, 1989, a vehicle pulled up to Berndt who was taking a coffee break but who was on duty and in uniform. A man whose identity was unknown to Berndt emerged from the car and, while laughing, asked, "You looking for me?" The man answered, "You know who I am," but Berndt responded that he did no know him.

 The stranger then declared, "I'll just turn my own self in," ran back to his car and drove off. Based on that encounter, which took no more than twenty seconds, Berndt did not believe that he had a lawful basis to detain the man.

 The man then went to the Evanston police station and surrendered on an outstanding battery warrant. At the police station, he complained that Berndt had refused to arrest him.

 Based on that complaint, the Evanston police department accused Berndt of misconduct. Following an investigation, Evanston's Chief of Police concluded that Berndt was guilty of wrongdoing and should be suspended for five days. CCPA, Berndt's union, filed timely grievances on his behalf under its collective bargaining agreement with the city. Evanston's Chief of Police and its City Manager denied the grievances and Berndt and CCPA filed Case No. 91-528 in federal court.

 The CCPA and Berndt v. Evanston complaint further alleged that the City of Evanston had adopted an unconstitutional policy. Paragraphs 13 and 14 of that complaint stated:

 
13. By disciplining plaintiff Berndt for failing to detain a citizen in circumstances when a reasonable police officer would not believe that he had a lawful basis to detain, defendant City of Evanston has adopted a policy which, if allowed to stand, will require plaintiff Berndt and other police officer members of the Combined Counties Police Association to violate the constitutional rights of citizens.
 
14. Unless restrained by this Court, defendant City of Evanston will continue to discipline police officers who refuse to make unconstitutional detentions of the type described herein, thereby causing irreparable harm to the members of plaintiff CCPA and to persons who [sic] constitutional rights will be violated because of the unconstitutional policy.

 As relief, the complaint requested that the "Court issue a permanent injunction prohibiting the City of Evanston from disciplining police officers who refuse to detain a citizen in circumstances where a police officer would not believe that he (or she) had a lawful basis to detain."

 Berndt's amended complaint in this action alleges that filing the complaint in CCPA and Berndt v. Evanston was part of an overall effort by him and by his union to correct unlawful practices and bring them to public attention. The CCPA and Berndt v. Evanston lawsuit was in fact reported in news articles in the Evanston Review, the Evanston community newspaper, and in the Daily Northwestern, the daily newspaper published by students at Northwestern University.

 On March 15, 1991, after the filing of CCPA and Berndt v. Evanston, Defendant Chief of Police Jacobi imposed a five day suspension on Berndt. This five day suspension was ostensibly for an incident of alleged misconduct that occurred on December 10, 1990. On July 26, 1991 (over a month after Judge Williams dismissed the case), Defendant Jacobi imposed a thirty day suspension on Berndt. The thirty day suspension was said to be for an incident of alleged misconduct that had occurred on December 16, 1990.

 Berndt alleges that a substantial motivating factor in Jacobi's imposition of the five and thirty day suspensions was the fact the Berndt was a co-plaintiff in CCPA and Berndt v. Evanston. Were it not for Defendant's desire to retaliate, Berndt alleges, there would either have been no discipline imposed or the sanctions would have been less severe.

 Discussion

 A. Standard of Review

 Defendant Jacobi's motion to dismiss can be granted only if "it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle the plaintiff to relief." Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985). Only if the allegations of the complaint, and all reasonable inferences drawn therefrom, ...


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