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).
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 as a de facto (though not de jure) prosecutor ( id. at 1235):
The irregular arraignment, conviction, and sentence were not, however, the only acts of Vanderwater that proximately caused Lopez' injury. Vanderwater acted as prosecutor. He made the decision to prosecute. He determined the offense to be charged, originally contemplating criminal trespass and then deciding on theft of the key. He prepared a written charge on the "Notice to Appear" form. He caused Gamble to sign the blank complaint form and the next day had that form completed by the State's Attorney's staff. He prepared a guilty plea and waiver of jury and caused a signature, which he says was Lopez', to be placed thereon. Finally, Vanderwater presented the charge and plea form to himself with the expectation that it would be the basis for an unconstitutional conviction and sentence. These acts were not functions "normally performed by a judge." They were not, therefore, "judicial acts," and are not, as a consequence, protected by judicial immunity.
In consequence the Court of Appeals held ( id. at 1236 (footnote containing proximate cause analysis omitted)):
Vanderwater's acts as a prosecutor were intended to make possible, and were an essential preliminary to, the series of wrongs that culminated in Lopez' illegal conviction and sentence.
Those actions were held to be "under color of law" because of that linkage ( id. at 1237):
Vanderwater was able to take his prosecutorial acts because he was cloaked with the office of judge. His use of that office to prosecute Lopez was action under color of state law.
By total contrast, this opinion has already pointed out that law enforcement is no part of a firefighter's responsibility. Nothing about the office of fireman, the office with which Brockman and Jensen were cloaked, either implies or facilitates their usurpation of law enforcement (for which in this case read "law-breaking") activities. Thus it is that our Court of Appeals has rejected Section 1983 liability for a state law enforcement officer who actually flashed his state-issued badge in a show of authority while he was actually acting pursuant to federal authority ( Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir. 1976) ("But the mere assertion that one is a state officer does not necessarily mean that one is acting under color of state law")). And most recently our Court of Appeals has spoken in Gibson v. City of Chicago, 910 F.2d 1510, 1518-19 (7th Cir. 1990) (emphasis in original) in a manner that, because the language might well have been written for this case, is worth quoting at great length:
While it remains true that "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law," United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941) (emphasis supplied), one cannot misuse power that one no longer possesses. Mr. Gibson responds to this criticism by pointing to language in some of the cases that speak of acting under "pretense" of law. Mr. Gibson argues that this "pretense" language indicates that "the color of law requirement is met if the person whose conduct is being considered pretended to act as a police officer even though he was not in fact so acting." Appellant's Br. at 15-16 (citing Williams v. United States, 179 F.2d 656, 661 (5th Cir. 1950), aff'd, 341 U.S. 97, 71 S. Ct. 576, 95 L. Ed. 774 (1951); Crews v. United States, 160 F.2d 746, 750 (5th Cir. 1947)). While it is no doubt true that an officer who, motivated by personal animus, misuses his lawfully possessed authority to injure the plaintiff may be found to be acting under color or "pretense" of law, Screws v. United States, 325 U.S. 91, 111, 65 S. Ct. 1031, 1040, 89 L. Ed. 1495 (1945), we have found no authority for expanding this concept of "pretense" of law to encompass the actions of an official who possessed absolutely no authority to act but nonetheless assumed the position of an imposter in pretending that he did. In fact, Screws, the case most often cited as the fount of the "pretense" language, makes abundantly clear the distinction between, on the one hand, the misuse of power under pretense of law and, on the other, the actions of an officer who has no authority whatsoever to act. Id. In responding to criticism that the "misuse of power" formulation for "under color of law" was too broad and in contravention of Congress' true intent that "under color of law" should "include only action take by officials pursuant to state law," the Court responded:
But those statements [regarding Congress' perceived intent] in their context are inconclusive on the precise problem involved in the Classic case and in the present case. We are not dealing here with a case where an officer not authorized to act nevertheless takes action. Here the state officers were authorized to make an arrest and to take such steps as were necessary to make the arrest effective. They acted without authority only in the sense that they used excessive force in making the arrest effective. It is clear that under "color" of law means under "pretense" of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line or overstep it. If, as suggested, the statute was designed to embrace only action which the State in fact authorized, the words "under color of any law" were hardly apt words to express the idea.
Id. (emphasis supplied).
Accord, Hughes v. Meyer, 880 F.2d 967, 971-72 (7th Cir. 1989).
Thus for Section 1983 purposes what the Complaint presents is a private brawl, in just the same way that a like encounter by Vanderlindes with the Mayor of Oak Lawn would have been a private dispute and not one implicating the necessary state action. There is no genuine issue of material fact that would bear on the potential liability of Brockman and Jensen under Section 1983, and they are entitled to a judgment as a matter of law with respect to Count I of the First Amended Complaint. That being the case, Count II is dismissed for lack of subject matter jurisdiction, because it is no longer supplemental to any federal-question claim as 28 U.S.C. § 1367 would require (see United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)). This action is dismissed in its entirety.
Milton I. Shadur
United States District Judge
Dated: May 18, 1992