797 F.2d 432 (7th Cir. 1986), 85-2767, Gramenos v. Jewel Companies, Inc.

Docket Nº:85-2767.
Citation:797 F.2d 432
Party Name:James N. GRAMENOS, Plaintiff-Appellant, v. JEWEL COMPANIES, INC., et al., Defendants-Appellees.
Case Date:July 25, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 432

797 F.2d 432 (7th Cir. 1986)

James N. GRAMENOS, Plaintiff-Appellant,


JEWEL COMPANIES, INC., et al., Defendants-Appellees.

No. 85-2767.

United States Court of Appeals, Seventh Circuit

July 25, 1986

Argued May 14, 1986.

Rehearing and Rehearing En Banc Denied Aug. 29, 1986.

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James A. Stamos, Chicago, Ill., for plaintiff-appellant.

John T. Maher, Asst. Corp. Counsel, James T. Ferrini, Clausen, Miller, Gorman, Caffrey & Witous, Chicago, Ill., for defendants-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and CAMPBELL, Senior District Judge. [*]

EASTERBROOK, Circuit Judge.

Johnny Vaughn, a security guard at a Jewel supermarket, stopped James Gramenos, a customer, at 11:30 p.m. as he was leaving the store. Gramenos remonstrated with Vaughn and then ran through the store. Vaughn caught him and held him in an office until Joseph Schmit and Frank Cosgrove, officers of the Chicago police, arrived. Vaughn accused Gramenos of shoplifting, displaying a jar of baby food, a box of gelatin, and two tubes of toothpaste, which Vaughn said he had seen Gramenos put in his pocket while shopping and then scatter during his dash through the aisles.

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Gramenos denied stealing the items, stating that he first had taken Vaughn for an assailant and then, on learning that Vaughn was a guard, had gone in search of the store's manager to complain about Vaughn's behavior. Vaughn signed a complaint. The police arrested Gramenos, who protested: "You can't do this. I want to talk to witnesses and get my side of the story. I am a lawyer. I am a public defender." (One patron in the store recalls that Gramenos kept saying: "You can't arrest me, I'm a lawyer.") The police let him go at 4:15 a.m. after he posted a $100 bond.

Gramenos was prosecuted and acquitted. Vaughn was the only witness for the state, and at the end of Vaughn's testimony the judge stated: "I think on all things I think there is a misunderstanding. I have a doubt. Finding of not guilty." Gramenos then turned the tables, filing this suit under 42 U.S.C. Sec. 1983 against the supermarket, Vaughn, the two arresting officers, and Sgt. Frank Heatley, the desk officer at the police station at which Gramenos was held. After discovery had been completed, the defendants moved for summary judgment. A magistrate recommended that the district judge grant the motion; the judge did so, adopting the magistrate's short opinion.


Illinois law requires that a criminal complaint be sworn. Ill.Rev.Stat. 38 Sec. 111-3(b). Vaughn's complaint was not properly sworn. Vaughn signed the complaint, but not in the presence of the attesting officer, Sgt. Heatley. Gramenos believes that on this account Vaughn and the police must pay him damages. We will assume that the procedure of attesting the signature out of the presence of the witness violates state law. It does not matter. In a suit under Sec. 1983 the plaintiff must show a violation of the Constitution or laws of the United States, not just a violation of state law. The two are not the same. E.g., Carson v. Block, 790 F.2d 562, 565 (7th Cir.1986) (collecting cases); McKinney v. George, 726 F.2d 1183, 1188-89 (7th Cir.1984) (holding that a warrantless arrest on probable cause does not violate the fourth amendment even if state law required the police to have prior authorization). No principle of federal law makes a properly attested complaint necessary to an arrest or a criminal prosecution. Police often arrest suspects on the basis of oral reports from witnesses, and the state may prosecute against the wishes of all witnesses.

Gramenos states that: "The failure to file a valid complaint, in of [sic] itself, establishes a violation of Sec. 1983 [sic]. Duriso v. K-Mart, 559 F.2d 1274 (5th Cir.1977); Smith v. Brookshire Bros., 519 F.2d 93 (5th Cir.1975)." Neither case says anything like this. The complaint in Smith was irregular, but the violation of the Constitution was that the police arrested a suspect without either a valid complaint (the witness signed a blank piece of paper) or any knowledge of the facts. As the court put it, the police "depended on the conclusory assessment of the store officers. These store managers, in turn, did not have probable cause for believing that McClure was a shoplifter and that Smith was an accomplice." 519 F.2d at 94. In Duriso the complaint was properly signed, and it was this complaint that furnished the basis for concluding that the complaining witness knowingly made a false charge under color of state law. 559 F.2d at 1277-78. In both Smith and Duriso the constitutional problem was the lack of probable cause to make an arrest. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1349 (7th Cir.1985), on which Gramenos relies for assistance on every other issue in the case, states: "this court once again notes that an alleged violation of a state statute does not give rise to a corresponding Sec. 1983 violation, unless the right encompassed in the state statute is guaranteed under the United States Constitution." Gramenos does not even try to explain how his position can be reconciled with Moore.

Gramenos insists, however, that the Supreme Court has held that violations of state law also violate the Constitution.

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The brief cites Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), and Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). The question in Harlow was one of immunity, and the Court said that officials are immune from liability in damages for the violation "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. at 818, 102 S.Ct. at 2738. A rule that a clear violation of statute will remove an immunity--because the statute gives notice of the conduct required, so that the defendant cannot say that the norm took him by surprise--is a far cry from saying that the violation of a statute is itself a violation of the Constitution. Davis then holds that violations of statutes generally do not dissipate immunity, stating: "Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision." 468 U.S. at 194, 104 S.Ct. at 3020. A footnote continues: "Neither federal nor state officials lose their immunity by violating the clear command of a statute or regulation--of federal or of state law--unless that statute or regulation provides the basis for the cause of action sued upon." 468 U.S. at 194 n. 12, 104 S.Ct. at 3020, n. 12. The statute involved in this case is not a statute of the United States, the violation of which would be actionable under Sec. 1983.


Gramenos accuses Jewel, Vaughn, and the police of conspiring to deprive him of his constitutional rights. There are two problems. One, which applies to all defendants, is that the claim assumes a deprivation of rights--an arrest that is unreasonable within the meaning of the fourth amendment, now applicable to the states through the fourteenth. If the arrest was constitutionally unreasonable, then the police are liable under Sec. 1983 without regard to the "conspiracy", and if not, not. We defer to Part IV the discussion whether the arrest was supported by probable cause. The other problem, which applies to Jewel and Vaughn, is that the Constitution applies only to governmental actors. Gramenos does not contend that one who accuses someone else of a crime is exercising the powers of the state. A private party comes within Sec. 1983 only when "he is a willful participant in joint action with the State or its agents.... Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the [state]." Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). Although private parties call on the aid of state law "without the grounds to do so", when the private decision may "in no way be attributed to a state rule or a state decision" (Lugar v. Edmondson Oil Co., 457 U.S. 922, 940, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982)), the private parties are not state actors. There must be a conspiracy, an agreement on a joint course of action in which the private party and the state have a common goal. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

Adickes, the last in a line of cases in which restaurateurs and others used the trespass or vagrancy laws to enforce racial segregation long after it became clear that the state may not discriminate on account of race, has become the basis for a rule that shopkeepers are engaged in "state action" when they strike a deal with the police under which the police simply carry out the shopkeepers' directions. If the police promise to arrest anyone the shopkeeper designates, then the shopkeeper is exercising the state's function and is treated as if he were the state. This approach is the basis for the finding of state action in Duriso and Smith and, among many other cases, Moore v. Marketplace Restaurant, 754 F.2d at 1352-53; Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir.1984), vacated in part, --- U.S. ----, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985); and Davis v. Carson Pirie Scott & Co., 530 F.Supp. 799 (N.D.Ill.1982). But if the shopkeeper is operating independently, his conduct is

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judged under the state tort law (false arrest, malicious prosecution, slander, and the like) rather than the fourth amendment. Cf. Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). The parties agree on these principles but disagree about their...

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