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JOHNSON v. SMITH

March 8, 1995

TINA JOHNSON, et al., Plaintiffs,
v.
WILLIAM SMITH, et al., Defendants.



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

 Tina Johnson, Steve Johnson, Tracy Johnson, Rose Johnson and Jilda Johnson Lewis (collectively "Johnsons") have moved under Fed. R. Civ. P. ("Rule") 56(c) for a summary judgment on the issue of liability against the remaining nondefaulted defendants in this action: on Counts I through VI against defendant William Smith ("Smith") and Brian Emberton ("Brian") and on Count IV as to David Emberton and Julia Emberton (collectively "Brian's Parents"). For the reasons stated in this memorandum opinion and order, Johnsons' motion is granted in its entirety.

 Although the time that this Court had set for defendants' responses to Johnsons' motion has come and gone, the only response of any nature that this Court has received has been that from Smith's lawyer. Instead of dealing with the merits, Smith (through his counsel) asks that this Court not rule on Johnsons' motion at all, calling to his aid for that purpose 10- Dix Bldg. Corp. v. McDannel, 134 Ill. App. 3d 664, 480 N.E.2d 1212, 89 Ill. Dec. 469 (1st Dist. 1985). In that respect Smith states in his current filing, and this Court accepts, that because he has not yet gone to trial on the state criminal charges against him (which grow out of the same incident that triggered this lawsuit), he will exercise his Fifth Amendment privilege against self incrimination rather than responding substantively to Johnsons' factual assertions. *fn1"

 Quite apart from the question whether any state court decision on a matter of state procedure (an accurate description of 10-Dix) can properly control (or even inform) a federal district judge who is called upon to decide a Rule 56 motion in a federal constitutional-question case, 10-Dix does not support Smith's contention here. No one is seeking to hold Smith in contempt, or to compel him to testify or to produce documents, if he chooses--as is his absolute right--to invoke the Fifth Amendment instead of responding to Johnsons' factual submissions. But if he does wrap himself in the Fifth Amendment's mantle, Smith must abide the consequences of the fact that a defendant's assertion of the Fifth Amendment in a civil case instead of responding to a plaintiff's proof may have adverse consequences that do not attach to a Fifth Amendment claim by a criminal defendant ( Baxter v. Palmigiano, 425 U.S. 308, 318, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976); National Acceptance Co. of Am. v. Bathalter, 705 F.2d 924, 930-32 (7th Cir. 1983)). *fn2" Though Smith may view that as a Hobson's Choice, this Court holds that he cannot legitimately obtain a deferral of Johnsons' Rule 56 motion, effectively holding Johnsons' lawsuit hostage now that they and their lawyer have run out of the extraordinary patience that they have exhibited to this point. *fn3"

 Facts4

 On August 15, 1990 Smith and Brian, together with other defendants in this action, burned a cross in Johnsons' yard and threw a brick through the window of their residence. Those intentional acts were committed solely because Johnsons (other than Tina Johnson) are African-American and because Smith, Brian and the others wanted to drive Johnsons out of the Smith-Emberton neighborhood (which had been predominantly occupied by white persons before Johnsons moved in).

 That outrageous conduct was both humiliating and intimidating to Johnsons. Steve and Tracy Johnson have already moved out of the neighborhood as a direct consequence of the cross-burning incident, and Tina Johnson is now planning to move out of the neighborhood for the same reason.

 Johnsons' Claims

 As already indicated, Johnsons have asserted a number of claims in six separate counts. Each of those claims is supported by the preceding brief factual recital and by the more elaborate GR 12(m) factual statement attached as Ex. 1. Only a brief statement of the relevant law is needed to deal with each of the six claims.

 Count I charges violations of 42 U.S.C. § 1982. This Court's earlier opinion in this case (the "Opinion," 810 F. Supp. 235 (N.D. Ill. 1992) *fn5" ) has already agreed with the earlier decision by this Court's then colleague Honorable Nicholas Bua ( Stirgus v. Benoit, 720 F. Supp. 119, 121-22 (N.D. Ill. 1989)) that such a claim imposes liability against defendants such as Smith and Brian (Opinion at 237). And that is equally true as to the claim brought under the same statute by Tina Johnson, as the Caucasian mother of African-American children ( Cato v. Jilek, 779 F. Supp. 937, 940-41 (N.D. Ill. 1991) and cases cited there).

 Count II is brought under 42 U.S.C. § 1985(3). Here the conduct that Johnsons have proved against Smith and Brian constitutes an unlawful conspiracy as that concept is explained in such cases as Bell v. City of Milwaukee, 746 F.2d 1205, 1255 (7th Cir. 1984). And the other facets of a claim under that statute, as defined in Griffin v. Breckenridge, 403 U.S. 88, 102-05, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), have also been satisfied here. In both those respects, see Opinion at 238.

 Count IV asserts that the identical conduct by Smith and Brian also violated a state law, the Illinois "hate crime" statute (720 ILCS 5/12-7.1). That is so because the conduct proved by Johnsons constitutes mob action under 720 ILCS 5/25-1(a)(1)( People v. Johnston, 204 Ill. Dec. 468, 267 Ill. App. 3d 526, 532, 641 N.E.2d 898, 902 (1st. Dist. 1994)) and because the actions were taken for racially discriminatory purposes. Indeed, Brian's criminal conviction under the predecessor to the hate crime statute would likely be prima facie evidence of the facts establishing his violation of the statute ( Thornton v. Paul, 74 Ill. 2d 132, 147-50, 384 N.E.2d 335, 341-42, 23 Ill. Dec. 541 (1978)). Because of Brian's unemancipated minority status at the time of the cross burning, Brian's Parents are also civilly liable under the Illinois statute.

 Next Johnsons advance in Count V an Illinois common law claim for intentional infliction of emotional distress. Although the Illinois requirements to establish such a claim are demanding ( Public Fin. Corp. v. Davis, 66 Ill. 2d 85, 89, 360 N.E.2d 765, 767, 4 Ill. Dec. 652 (1976); McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806, 809, 127 Ill. ...


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