IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
May 1, 2009
HERBERT RUFF, ET AL., ETC., PLAINTIFFS,
CHICAGO POLICE OFFICER H. QAZI, ETC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
City of Chicago and one of its police officers, Hakeem Qazi ("Qazi"), have just filed their Answer to the First Amended Complaint ("FAC") brought against them by Herbert Ruff, Dorothy Williams and Tracy Williams, as mother and next best friend of Dillyn Williams, a minor. This memorandum order is issued sua sponte because of the problematic nature of the so-called affirmative defense ("AD") that is appended to the Answer.
That AD asserts qualified immunity on behalf of Officer Qazi on this premise:
At all times material to the events alleged in Plaintiffs' First Amended Complaint, a reasonably competent police officer, objectively viewing the facts and circumstances then confronting Defendant Qazi, could have believed his actions regarding the encounter with Plaintiffs Dorothy and Dillyn Williams, and his actions regarding the encounter with and arrest of Plaintiff Herbert Ruff, to be lawful, in light of clearly established law and the information that Defendant Qazi possessed. Defendant Qazi is therefore entitled to qualified immunity on Plaintiffs' claims under federal law.
That may very well be Qazi's argument, but it violates the fundamental principle that an AD must accept as true all of the allegations of the complaint to which it is addressed, while going on to assert that some other reason excuses the pleader from liability--see App'x ¶5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001), explaining the function and operation of Fed. R. Civ. P. 8(c). And in this instance the FAC flat-out negates the position advanced in the AD.
Accordingly the AD is stricken.*fn1 In all other respects the Answer (including its denials that have put at issue the parties' differing positions on the operative events) will stand.