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May 10, 1994

HARVEY RAMBO, Plaintiff,


The opinion of the court was delivered by: JAMES B. ZAGEL

Shortly before ten o'clock on the night of 5 April 1991, Police Officer John Daley was patrolling near the intersection of Brainard and Burnham Avenues in the Village of Burnham, Illinois. At the intersection, he observed "an older model Chevy" coming toward him in the wrong traffic lane. Officer Daley gave chase with lights flashing and siren blaring. The Chevy refused to yield, swerving across lanes as it raced ahead. Roughly one-half to three-quarters of a mile from where the chase began, the Chevy crossed some railroad tracks and pulled into a liquor store parking lot--having travelled approximately one hundred feet past the Illinois border into Hammond, Indiana.

 Officer Daley pulled into the lot, exited his car, approached the Chevy's driver, and asked to see his license. The driver, Harvey Rambo, told the officer that, having crossed the state line, he would comply only with directives from Hammond police officers. Burnham Police Officer William McGinnis subsequently arrived on the scene. Daley and McGinnis arrested Rambo, but Rambo refused to get into the Burnham squad car, stating that the officers had no right to interfere with him in Indiana. The officers handcuffed Rambo and, according to the amended complaint, forced him into the squad car by pushing and shoving him, pulling his hair, punching him in the ribs, and repeatedly striking him. Rambo claims that, having asked the officers to summon the Hammond police, he was neither attempting to flee nor resisting arrest and did nothing else to provoke the officers' use of force.

 The officers drove Rambo back to Illinois, to the Burnham Police Department, where they charged him with driving under the influence of alcohol and resisting arrest. Rambo alleges that he repeatedly requested access to medical treatment for injuries sustained during his arrest and that Daley and McGinnis rejected these requests. As a result, he says that he was forced to suffer those injuries--which the amended complaint fails to identify--without medical care until released from custody and taken by his wife to the St. Margaret Hospital Emergency Room in Hammond. He arrived there at 12:02 a.m. on 6 April 1991, two hours after his arrest. At St. Margaret's, Rambo complained of numbness in his left hand and wrist, to which an ace bandage was applied. He was discharged at 1:20 a.m. He now claims that he suffered also from broken ribs.

 In Count I of this complaint, Rambo claims that Daley and McGinnis, under color of state law, used excessive force against him and owe him damages under 42 U.S.C. § 1983. Count II is a pendant Illinois law claim for malicious prosecution. Count III No. 92 C 0780 is another § 1983 claim, this time for denial of medical care. The defendants seek dismissal under Rule 12(b)(6), and summary judgment under Rule 56(b) on the federal claims. Should they prevail, they ask this court also to relinquish jurisdiction over the pendant state law claim.

 Summary judgment is appropriate if, after drawing all reasonable inferences in favor of the non-moving party, the court concludes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FRCP 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 248.

 Defendants claim they were not acting under color of law when they allegedly used excessive force to arrest Rambo because they had no actual authority to arrest Rambo in Indiana. *fn1" Section 1983 creates liability only for persons acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . ."

 Applying similar language to an excessive-force claim in Screws v. United States, the Supreme Court recognized that "under color of law" was not coextensive with actual authority:

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 of their authority 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 law' were hardly apt words to express the idea.

 Screws v. United States, 325 U.S. 91, 111, 89 L. Ed. 1495, 65 S. Ct. 1031 (1944) (emphasis added). In Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), *fn2" the Supreme Court reaffirmed that Congress sought to "enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Id. at 172. And again, in Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982), the Court held that an officer acts under color of law if he is clothed with the authority of the state, and is purporting to act under that authority, even if he misuses or abuses that authority.

 On the other hand, Daley and McGinnis cite Gibson v. City of Chicago, 910 F.2d 1510, 1518 (7th Cir. 1990), where the Court of Appeals held that an officer's actions were not under color of law because his department had effectively suspended him prior to those actions. The court emphasized language from Screws in which the Supreme Court acknowledged that it was not confronting the case of an officer completely stripped of authority. Id. at 1518-19.

 In short, Daley and McGinnis argue that once they crossed into Indiana, they stood in the same position as the suspended officer in Gibson: they lacked all authority to act as police officers. Rambo counter-argues that Daley and McGinnis acted in their capacity as Burnham police officers when they arrested him, and therefore acted under color of state law, although they overstepped their authority. The arguments present an interesting issue of characterization.

 Daley and McGinnis rely heavily on Firman v. Abreu, 691 F. Supp. 811, 813 (S D NY 1988). New York State Trooper Angel Abreu approached Martin Firman in his car at an exit on the Connecticut Turnpike. The trooper asked Firman for his driver's license and registration. Firman refused, informed the Trooper that he was beyond his jurisdiction, requested local police assistance, and then drove away. Abreu pursued and attempted to arrest Firman, who alleged the trooper assaulted him in the process. Firman was eventually apprehended and brought to a police station in Greenwich, Connecticut.

 Judge Sprizzo found that Firman failed to establish that Abreu had acted under color of state law: "Although it is true that state officials can act under color of state law even if they overstep their authority, that rule can have no application where, as here, the official has no colorable authority to act in the jurisdiction in which he purports to act." 691 F. Supp. at 813 (citations omitted). Judge Sprizzo found that Abreu acted without actual or apparent authority because "all acts took place in Connecticut where Abreu had no authority ...

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