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October 21, 1992

JOHN S. SMITH, Plaintiff,
LEROY MARTIN, et al., Defendants.


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


Defendants have moved for summary judgment against John Smith ("Smith"), who claims a violation of his constitutional rights because he was allegedly punished for speaking out against the deliberate flouting of the Chicago Clean Indoor Air Ordinance by defendants--fellow members of the Chicago Police Department. Smith has responded to that motion on the three issues that this Court identified for the parties in its September 11, 1992 oral directive. Although each side has necessarily occupied substantial space in addressing the issues, *fn1" no extended discussion is required to deal with defendants' motion, which is denied. *fn2"

 First Amendment Protection

 This Court has had occasion in the past to comment on the remarkable level of serendipity that is associated with the business of federal judging. Once again a current slip opinion from our Court of Appeals has delivered a timely message applicable to a pending motion--this time it is the thorough treatment in Churchill v. Waters, 977 F.2d 1114, slip op. (7th Cir. 1992) of the same issues that are posed here.

 As to the first and most critical threshold question--whether the inhalation of second-hand smoke is a matter of public concern within the protection of such cases as Pickering v. Board of Education, 391 U.S. 563, 568, 574, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968) and Connick v. Myers, 461 U.S. 138, 142-49, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983)--last week's extended opinion in Churchill (see especially slip op. at 10-12) confirms a resounding "yes" answer. And relatedly, the need to draw all reasonable inferences in Smith's favor on defendants' summary judgment motion precludes the entry of judgment for defendants as a matter of law under this Court's analysis in Limes-Miller v. City of Chicago, 773 F. Supp. 1130, 1141-43 (N.D. Ill. 1991).

 Like the plaintiffs in Churchill and Limes-Miller, Smith's involvement in an issue of public concern did grow out of his own personal interest in the subject. After all, who among us ordinarily gets aggressively involved in issues in which he or she has no personal interest? But here the asserted retaliation by defendants took place after Smith had sought to bring the matter onto a larger stage by "going public" with it to the Chicago Department of Health and (at that Department's directive) to the Police Department's Legal Affairs Unit. That reasonably fits the public-concern model that this Court distinguished in Limes-Miller. It is of course not essential to that conclusion that the public employee's speech must have taken place in a public forum (see, e.g., Rankin v. McPherson, 483 U.S. 378, 388-89, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987)), although the fact of Smith's having gone to the public media after the retaliation might well be taken into account in evaluating the public-concern nature of his grievance at an earlier stage.

 Second, defendants' arguments as to the validity of the seemingly outrageous assignment that defendants inflicted on Smith after he had spoken out on the smoking issue (arguments that, if established, would also show the absence of retaliatory motive) cannot survive the granting of the necessary favorable inferences to Smith. No trier of fact is obligated as a matter of law to accept what in surface terms seems a pretextual cover story. On that score this Court, like the factfinder at trial, is not required to accept defendants' testimony about the claimed legitimacy of the investigation and the reason for enlisting Smith in it, given the suspicious timing and the total absence of some internal records that would normally accompany such matters.

 Actionable Conspiracy

 As with the matters just discussed, the issue of conspiracy vel non is for the trier of fact. Circumstantial evidence--inferences from all of the circumstances, including such a facially bizarre assignment coming hard on the heels of Smith's complaints about the second-hand smoke issue--could reasonably lead to such a determination despite the absence of any express admissions by defendants or any other direct evidence.

 But that potential finding of a conspiracy is simply relevant to legal questions that would affect the direct liability of individual defendants under 42 U.S.C. ยง 1983, *fn3" for example by bearing on the admissibility of evidentiary matters under Fed. R. Evid. 801(d)(2)(E). Defendants are right in their contention that Smith has not asserted the type of "class-based, invidiously discriminatory animus" that fits Section 1985(3), as definitively cabined by Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971) and its progeny.

 Section 1983 Liability

 As already indicated, it is basic doctrine that the Section 1983 responsibility of individual defendants must be direct and not vicarious. In those terms, and once again with the required inferences drawn in Smith's favor for summary judgment purposes:

 1. Each of defendants James Fruin, Robert Biebel, Steven Kuhn and William Murray was directly involved in what must be assumed for present purposes to have been a pretextual and retaliatory assignment in response to Smith's exercise of his First Amendment rights. That is enough to keep those four defendants in the case.

 2. Defendant John Klein ("Klein") was apprised of the assertedly retaliatory assignment. If a trier of fact were to find that he turned a blind eye to the matter rather than acting to correct it as Smith had asked, cases such as Rascon v. Hardiman, 803 F.2d 269, 276 (7th Cir. 1986) would support a finding of Section 1983 liability on Klein's part as well.

 3. If the evidence in Smith's favor is credited (as it must be for the moment), former Superintendent of Police Leroy Martin had a direct involvement akin to Klein's: his having been notified of the unlawful conduct of his subordinates, without then taking appropriate action to correct it as was within his power. Again the principle of Rascon and like cases averts summary judgment and leaves the matter to the triers of fact.


 Except for the dismissal of Smith's Section 1985(3) claim, material issues of fact preclude the entry of summary judgment in defendants' favor. This action will proceed to trial.

 Milton I. Shadur

 Senior United States District Judge

 Date: October 21, 1992

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