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VANDERLINDE v. BROCHMAN

May 18, 1992

GEORGE VANDERLINDE and JOHN VANDERLINDE, Plaintiffs,
v.
GARY BROCHMAN, MICHAEL JENSEN, JOHN DOE 1 and JOHN DOE 2, Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Gary Brockman (incorrectly identified as "Brochman" in the Complaint) and Michael Jensen have moved for summary judgment in this 42 U.S.C. § 1983 ("Section 1983") action brought by George and John Vanderlinde ("Vanderlindes"). Because Vanderlindes have not responded to the motion by filing a statement under this District Court's General Rule ("GR") 12(n) in response to the Brockman-Jensen GR 12(m) statement, although their counsel have tendered a short responsive memorandum in opposition to the Brockman-Jensen memorandum filed in support of their motion:

 1. All the material facts set out in the Brockman-Jensen GR 12(m) statement are deemed admitted. That is hardly surprising, given the fact that for purposes of the Brockman-Jensen motion they have not disputed the factual allegations of Vanderlindes' Complaint.

 2. Because the only issue between the parties in the current posture of the case is one of law rather than fact, the matter is ripe for decision.

 Vanderlindes' Complaint (which Brockman and Jensen have effectively admitted for purposes of their motion) alleges a physical encounter between Vanderlindes on the one hand and Brockman and Jensen (both firefighters employed by the Village of Oak Lawn) on the other. According to the Complaint, Vanderlindes were comporting themselves peaceably in the Village of Oak Lawn when this sequence of events occurred:

 4. At or about 10:00 p.m. on February 4, 1991, plaintiffs were walking on 52nd Avenue in the City of Oak Lawn, Illinois when John Vanderline [sic] walked into the side view mirror of a vehicle that was parked near the intersection of 98th Street and 50th Court. John inspected the mirror and observed that he had not caused any damage to it. John then readjusted the mirror and plaintiffs continued to walk on the public way.

 5. As plaintiffs reached the intersection of 51st Avenue and 98th Street, they were accosted by defendants who displayed Oak Lawn Fire Department badges and represented that they were "the law in Oak Lawn."

 6. After plaintiffs acquiesced in the above described show of official authority and without any provocation from plaintiffs or any other lawful justification, defendants began to beat and strike plaintiffs, causing each plaintiff to incur injuries to the person and undergo pain and suffering.

 7. After beating and striking plaintiffs, one or more of defendants handcuffed plaintiff John Vanderline while one or more of the defendants held plaintiff George Vanderline on the ground.

 That set of facts, if true, would state a cause of action under Illinois state law (just as Complaint Count II advances an Illinois common law claim of malicious prosecution stemming from the post-physical-encounter events). But all the parties are Illinois citizens, so that no diversity of citizenship exists, and hence Vanderlindes' only potential ticket of entry to this District Court rests on their ability to invoke federal-question jurisdiction under Section 1983.

 On that score Vanderlindes' fatal deficiency lies in their inability to satisfy the "under color of law" requirement of Section 1983. Just because Brockman and Jensen may have proclaimed themselves as "the law in Oak Lawn" does not of course make it so, any more than similar statements by self-proclaimed vigilantes or those intent on terrorizing towns in the standard Western movie plot had no legal effect. And law enforcement is not of course the authorized role of firefighters, so that the usual Section 1983 scenario of law enforcement personnel who act in an unlawful way--more accurately, an unconstitutional way--is not at issue here.

 Even policemen or other law-enforcement personnel are not automatically subject to Section 1983 liability for their actions if those actions do not satisfy the "under color of law" requirement--see Sheldon Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 2.09, at 83-84 (part of n.3) (3d ed. 1991). And the fact that Brockman and Jensen had and exhibited badges evidencing their status as firefighters does not somehow convert them into the equivalent of off-duty law enforcement officers within the scope of the Section 1983 cases that find the "under color of law" requirement satisfied in some factual contexts.

 Vanderlindes' counsel cite to cases that speak to general principles of Section 1983 jurisprudence--matters not in issue here that need no discussion--but to only one case as the purported support for Vanderlindes' claim, Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980). *fn1" But the sharp distinction between Lopez and this case is that there defendant Vanderwater had taken actions (albeit unconstitutional actions) in his capacity as judge, armed with the trappings of that office: He purported to arraign, convict and sentence Lopez to prison in an outrageous and wholly illegal way that must be read to be believed. In sum, he took the kinds of actions that are generally committed to the office of judge (sentencing for one), but he did so in an entirely unconstitutional manner.

 Although our Court of Appeals ruled that Vanderwater was entitled to the absolute immunity accorded to judicial acts, however wrongful (620 F.2d at 1234-35), he was nonetheless held liable under Section 1983 for his inextricably intertwined actions ...


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