United States District Court, N.D. Illinois, Eastern Division
October 6, 2005.
LAURA RAMIREZ, et al., Plaintiffs,
CITY OF CHICAGO, et al., Defendants.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
Numerous City of Chicago Police Officer defendants
(collectively "Officers") have filed their Answer to the Second
Amended Complaint ("SAC") brought against them and the City by
three members of the Ramirez family ("Ramirezes"). This
memorandum order is issued sua sponte to address some pleading
defects in the Affirmative Defenses ("ADs") and Fed.R.Civ.P.
("Rule") 12(b)(6) defenses that follow the Answer portion of that
responsive pleading. In part the filing by Officers' counsel is
difficult to justify, for on May 31 this Court issued a
memorandum order ("Order") that identified a like flaw in one of
the ADs to Ramirezes' then-pending Amended Complaint.
In that latter respect, the Order has already cautioned defense
counsel that both Rule 8(c) and the caselaw applying it confirm
the need to accept Ramirezes' allegations as true (as did the
common-law predecessor plea in confession and avoidance) see
also App. ¶ 5 to State Farm Mut. Auto. Ins. Co. v. Riley,
199 F.R.D. 276, 278 (N.D. Ill. 2001). Accordingly an answer that has denied various of those allegations suffices to put the disputed
matters at issue, and an AD that is at odds with a plaintiff's
allegations is not only inconsistent with the operative standard
but also adds nothing to the case. Accordingly:
1. On the facts alleged by Ramirezes, it simply was
not true that "a reasonably competent police officer,
objectively viewing the facts and circumstances then
confronting Defendant Officers, could have believed
their actions regarding their involvement in the
arrest, search, detention, and charging of
plaintiffs, to be lawful, in light of clearly
established law and the information that Defendant
Officers possessed." In that regard the current AD 1
is no better than the corresponding qualified
immunity AD stricken in the Order. Accordingly AD 1
2. Because a fair reading of Ramirezes' allegations
(together with the required reasonable inferences) is
that the conduct ascribed to Officers constituted
wilful and wanton conduct, AD 2 is also stricken.
3. In the same way, the assertedly arbitrary and
unfounded decisions by the Officers to arrest and
detain Ramirezes could not, on the strength of those
allegations, be considered "discretionary decision[s]
for which [Officers are] immune from liability." AD 5
is stricken as well. 4. Because Ramirezes plainly claim that Officers
"acted maliciously and without probable cause," AD 6
is stricken too.
As for Officers' Rule 12(b)(6) defenses, they too require
Ramirezes' allegations to be accepted as gospel, and the generous
standard set out in Hishon v. King & Spalding, 467 U.S. 69
(1984) applies to those allegations (again together with
reasonable inferences from those allegations). In those terms
Officers' third defense is ill-founded, and it too is
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