540 F.2d 1310 (7th Cir. 1976), 75-1993, Foster v. Zeeko

Docket Nº:75-1993.
Citation:540 F.2d 1310
Party Name:Alice FOSTER and William Allen, Plaintiffs-Appellees, v. J. ZEEKO and Guy DiBello et al., Defendants-Appellants.
Case Date:August 18, 1976
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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540 F.2d 1310 (7th Cir. 1976)

Alice FOSTER and William Allen, Plaintiffs-Appellees,


J. ZEEKO and Guy DiBello et al., Defendants-Appellants.

No. 75-1993.

United States Court of Appeals, Seventh Circuit

August 18, 1976

Argued Feb. 17, 1976.

Rehearing and Rehearing En Banc Denied Sept. 16, 1976.

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Robert Retke, Asst. Corporation Counsel, Chicago, Ill., for defendants-appellants.

Gary H. Palm, Irving Geslewitz, Law Student, Mandel Legal Aid Clinic, Chicago, Ill., for plaintiffs-appellees.

Before FAIRCHILD, Chief Judge, CUMMINGS and PELL, Circuit Judges.

PELL, Circuit Judge.

This is an appeal from a summary judgment by which plaintiffs Alice Foster and William Allen in a civil rights suit recovered from the defendant Chicago police officers J. Zeeko and Guy DiBello the sum of $500.00 as damages for the deprivation of rights guaranteed by the First and Fourteenth Amendments.

On the evening of December 31, 1971, the defendant police officers Zeeko and DiBello arrested five persons attending a New Year's Eve party in an apartment located in the City of Chicago. The officers had earlier obtained a search warrant that commanded Joseph Chu be searched at the address of the apartment in question for the presence of marijuana.

According to Officer Zeeko's deposition, the two policemen conducted a surveillance of the Chu apartment prior to the entry. Zeeko testified that he had smelled "the strong odor of marijuana smoke coming out the window." Officer DiBello stipulated that he would answer all questions asked of Zeeko "in all relevant respects identical to the answers given by (Zeeko)." The officers entered and searched the premises and all the individuals present in the apartment, including plaintiffs Foster and Allen. They found a small quantity of marijuana in Joseph Chu's pocket, and this material was the only contraband produced by the search.

The officers arrested Chu and charged him with the possession of marijuana. The officers also arrested Foster and Allen, as well as the other two occupants of the apartment, and charged each of them with violating Section 193-2 of the Chicago Municipal Code which reads as follows:

Every common, ill-governed, or disorderly house, room, or other premises kept for the encouragement of idleness, gaming, drinking, fornication, or other misbehavior, is hereby declared to be a public nuisance, and the keeper and all persons connected with the maintenance thereof, and all persons patronizing or frequenting the same, shall be fined not exceeding two hundred dollars for each offense.

The arrest reports of Foster and Allen stated "Above arrested on search warrant, arrest as a patron of a disorderly house in that (she/he) was on premises where narcotics were found." Around 5:00 A.M. on New Year's Day, the plaintiffs were released on $25.00 bond each. Their trial date was set for February 15, 1972.

On that day, Foster appeared before a judge of the Circuit Court of Cook County, Illinois, who denied leave to file the complaint against her. William Allen failed to appear, and a finding of guilty was entered against him in an ex parte proceeding with a fine of $25.00 being imposed. On July 24, 1972, Allen filed a motion to set aside the judgment and to dismiss the complaint pursuant

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to Ill.Rev.Stat. ch. 110, § 72, setting forth as one basis for relief the argument that § 193-2 of the Municipal Code of Chicago was unconstitutional. Circuit Court Judge Olson denied this motion, and plaintiff Allen thereafter took no action to appeal the judgment of conviction.

Subsequently, the plaintiffs brought suit seeking declaratory and injunctive relief as well as monetary damages pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and 1343(4). The defendants twice sought dismissal of the complaint, inter alia, on the grounds of abstention and comity spelled out in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Judge William Bauer, then serving as a district judge, twice denied this motion. Both parties later filed motions for summary judgment. The opposing parties filed stipulations of fact and memoranda of law, and both sides agreed that there were no issues of material fact. Subsequent to Judge Bauer coming to this court, the case was reassigned. Several months later, on March 13, 1975, the district court entered an unreported memorandum and order declaring § 193-2 unconstitutional on its face and void, denying an injunction against defendant Police Superintendent James Rochford and officers Zeeko and DiBello, ordering expungement of the plaintiffs' arrest records, and granting summary judgment in favor of the plaintiffs on the issue of liability, and entering summary judgment in favor of defendant James Conlisk. The parties later agreed that the amount of damages was properly fixed at $500.00; and on September 9, 1975, the court entered judgment in favor of the plaintiffs in that amount.

The district court held that as a matter of law the defendant police officers could not reasonably have believed that they could constitutionally arrest the plaintiffs under Chicago's "disorderly house" ordinance when the only misconduct alleged was that plaintiffs were present on the premises where narcotics were found. The court purported to rest upon legal standards in effect on December 31, 1971. We agree that this is the focus date. The court noted that the United States Supreme Court had established guidelines for measuring the permissible reach of legislation affecting First Amendment freedoms. The district court ruled that the defendants were on notice at the time of the arrests that the "disorderly house" ordinance contained many constitutional infirmities and that "Section 193-1 of the Chicago Municipal Code, with wording similar to that of Section 193-2, was struck down by this Court (Northern District of Illinois) several years ago." Landry v. Daley, 280 F.Supp. 968 (N.D.Ill.1968), appeal dismissed, 410 F.2d 551 (7th Cir. 1969).

Although we will direct attention hereinafter to other specific portions of the district court's memorandum, we note at this point that while the court referred to "many constitutional infirmities," the only aspect mentioned specifically was with relation to the words "common . . . room . . . kept for the encouragement of idleness . . . ." The court then stated without specificity that "(t)hat there are obviously many other extreme examples of innocent or inadvertent conduct which would violate Section 193-2, resulting in denial of constitutional guarantees of freedom of association." Further, we note that in Landry the prime emphasis was on vagueness and overbreadth, as was the court's emphasis in the present case; but we have difficulty, as the district court did not, in discovering the similarity in language between the two ordinances.

Because of the length of Section 193-1 which is set out in full in Landry at 969, we will not extend this opinion by reproducing the ordinance herein. It will be sufficient to quote Judge Will's pungent characterization, id.:

This ordinance has to be one of the most charming grabbags of criminal prohibitions ever assembled. Some of its provisions are nostalgic though obviously obsolete. Jugglers or touts, ropers, steerers or cappers for gambling houses are today

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as rare as buggy whips. Obsolescence, however, does not connote unconstitutionality.

The defendants have appealed only that part of the judgment awarding damages to the plaintiffs. Consequently the constitutionality of Section 193-2 is not directly before us. Necessarily, however, this unappealed issue retains meaningfulness insofar as it reflects upon the formulation of the principal issue in this case, i. e., whether police officers should be held personally liable in monetary damages as a matter of law when purporting to enforce an ordinance which itself had not been declared invalid at the time.

Citing, inter alia, Tritsis v. Backer, 501 F.2d 1021, 1022-23 (7th Cir. 1974), the plaintiffs on this appeal assert that while police officers under Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the seminal Section 1983 false arrest case decided by the United States Supreme Court, are allowed an affirmative defense of good faith when their actions are the subject of a damage suit for unlawful conduct ostensibly within the scope of their duties, nevertheless the standard of conduct is composed of two elements, the first being subjective and the second objective. As stated in Tritsis at 1022-23, "the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable." As we have previously noted, the focus time in considering the conduct of the police officers was the date of the arrest, December 31, 1971. The plaintiffs in the present case, as well as the district court, rest their case on the "objective" prong, i. e., that the officers should have known that the ordinance under which they were purporting to act was unconstitutional. 1

There would appear to be little or no question that the double pronged standard is now applicable in gauging a defense against a Section 1983 action by public officials having a qualified immunity. The plaintiffs cite in addition to Tritsis a number of cases supportive of the proposition. 2 Of the cases cited only Joseph v. Rowlen was decided before the crucial 1971 date, which presents a preliminary question of whether the objective phase, as presently recognized, should be applicable to the defense of 1971 conduct. Joseph does not in direct terms treat the issue. Because that case is primarily an application of principles found in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and Pierson v. Ray, supra, we turn to those cases for further guidance. Monroe v. Pape, although not concerned with the matter of the scope...

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