Smith v. U.S.
| Citation | 293 F.3d 984 |
| Decision Date | 12 June 2002 |
| Docket Number | No. 01-4000.,01-4000. |
| Parties | Randell L.D. SMITH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Randell L.D. Smith (submitted), Bloomington, IL, pro se.
Linda L. Mullen, Office of U.S. Attorney, Rock Island, IL, for Defendant-Appellee.
Before FAIRCHILD, ROVNER, and TERENCE T. EVANS, Circuit Judges.
Perched atop an M60-A3 tank parked on his farm, Randell L.D. Smith struck a proud pose as a newspaper reporter snapped his picture. At the age of 76, Smith was a bit of a fixture in the local news in Bloomington, Illinois. After he acquired the tank from the U.S. Army— one that once roared across the hot desert sands of Iraq during the Persian Gulf War—the Bloomington paper published several articles (with pictures), reporting that Smith had refurbished the tank for display on his farm. Passersby could see it from the street. In Bloomington it seemed that everyone knew about Smith and his tank. But the Army had no idea what was going on—it thought the local V.F.W. post had the tank. When the Army eventually discovered that Smith had the tank (a year after the Bloomington paper reported as much), government agents and the Illinois National Guard promptly repossessed it.
Unhappy with this turn of events, Smith sued the government under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), seeking a return of the tank plus damages for personal injuries he said he suffered when the agents roughed him up during the repossession. The district court granted partial summary judgment to the government and later, after a bench trial, ruled for the government on the remaining claims. Smith attacked the district court's decision as "corrupt" and launched this appeal.
Smith is a World War II veteran and member of the Bloomington, Illinois chapter of the VFW. In 1995 he set his sights on getting a World War II tank for the VFW post. The VFW hoped to display the tank in a city park as a memorial to veterans of the Second World War. Smith sent numerous letters on VFW letterhead to various groups, identifying himself as working on behalf of the VFW and asking where he could get a tank. He discovered that WWII-era tanks are scarce, so he accepted the Army's offer to donate a modern tank, one that was used in the Desert Storm phase of the Persian Gulf war. But the Army does not give tanks to just anyone, and so its donation to the VFW was conditional: the VFW had to get written permission from its national headquarters and the post needed a written agreement from the Illinois National Guard to "demilitarize" (render inoperable) the tank. The VFW also had to agree to not transfer the tank without the government's consent.
After Smith obtained the written approvals the Army required, he appeared before the Bloomington city council seeking permission to display the tank in a city park. But the council shot down his request because it did not want a Desert Storm tank as a memorial to WWII veterans. With this turn of events, the VFW decided it no longer wanted the tank.
Undeterred, Smith decided to create his own memorial. He drafted a letter on VFW letterhead allowing him to "seek other appropriate use" for the tank, and got the post commander to sign it. He set aside three acres of his farm where he planned to build the memorial. He then hired a towing company, with his own money, to retrieve the tank from Ft. McCoy, Wisconsin and deliver it to his farm. Rather than have the National Guard demilitarize the tank as the Army required, Smith and a friend tried to do it themselves.
Eventually, the Army discovered that Smith, not the VFW, had the tank. Alarmed by this news, the Army deployed two agents to Smith's farm. The agents found that the tank remained partially operational, and, importantly, was within firing range of the Central Illinois Regional Airport. The agents notified members of the National Guard, who came to Smith's farm and towed the tank. Smith claims that when he objected, the agents restrained him and, at one point, threw him to the ground. The Army subsequently destroyed the tank during target practice.
Smith brought his suit against the government pro se, alleging that it had no right to seize the tank. He sought its return and a modest $23 million in damages for injuries he said he sustained. The district court granted summary judgment to the government on Smith's conversion and replevin claims. After a bench trial on the remaining trespass and battery claims, the district judge found for the government. Smith appeals raising a bevy of issues.
Smith argues first that the trial court should not have granted summary judgment on his conversion and replevin claims because he presented evidence that a nonprofit corporation he created, the McLean County WWII Veterans Memorial, Inc. ("McLean County Memorial"), owned the tank. We review the trial court's decision to grant summary judgment de novo. Fed.R.Civ.P. 56(c); Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). In reviewing these claims, we apply the laws of Illinois, the state where the alleged torts occurred. Del Raso v. United States, 244 F.3d 567, 570 (7th Cir.2001).
We note at the outset that the McLean County Memorial is not a party to this case and Smith may not pursue the claims of a nonparty, so whether or not McLean County Memorial owned the tank is irrelevant to Smith's allegations. Perry v. Globe Auto Recycling, Inc., 227 F.3d 950, 954 (7th Cir.2000). Therefore, Smith can survive summary judgment only by submitting evidence that he owned or had a right to its possession. Cirrincione v. Johnson, 184 Ill.2d 109, 234 Ill.Dec. 455, 703 N.E.2d 67, 70 (1998) (); Union Bank of E. St. Louis v. Mattingly, 217 Ill.App.3d 131, 159 Ill.Dec. 1018, 576 N.E.2d 941, 942 (1991) (). This he did not do. In fact, he admitted that he "does not claim, he himself, had legal title or possession of the tank." Furthermore, the Army conditionally donated the tank to the VFW, not to Smith—in fact, the Army is prohibited from donating a tank to a private citizen. 10 U.S.C. § 2572(a). Finally, the letter Smith drafted purportedly giving him the tank was invalid because the Army...
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