American Civil Liberties U. v. City of Chicago, 75 C 3295.

• Decision Date: 26 May 1976
• Docket Number: No. 75 C 3295.,75 C 3295.
• Citation: 431 F. Supp. 25
• Parties: AMERICAN CIVIL LIBERTIES UNION et al., Plaintiffs, v. CITY OF CHICAGO et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

431 F. Supp. 25

AMERICAN CIVIL LIBERTIES UNION et al., Plaintiffs, v. CITY OF CHICAGO et al., Defendants.

No. 75 C 3295.

United States District Court, N. D. Illinois, E. D.

May 26, 1976.

COPYRIGHT MATERIAL OMITTED

Robert J. Vollen, Robert C. Howard, David Goldberger, Robert L. Tucker, Chicago, Ill., for plaintiffs.

Samuel K. Skinner, U. S. Atty., George M. Keane, Jr., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

KIRKLAND, District Judge.

This cause is before the Court on the following motions by defendants: (1) City defendants' motion to dismiss the complaint; (2) Federal defendants' motion to dismiss the complaint; and (3) Federal defendants' alternative motion for a more definite statement.

This is an action to redress the deprivation of rights secured by the First, Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments to the United States Constitution and by 42 U.S.C. § 1983. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343 and 28 U.S.C. §§ 2201 and 2202.

Plaintiffs' complaint alleges that defendants have violated and continue to violate their constitutional rights by gathering information about, and maintaining intelligence dossiers on their lawful activities. Defendants have filed motions challenging the complaint on various grounds.

The Court first considers City defendants' arguments in support of the motion to dismiss seriatim.

Defendants first argue that plaintiffs' complaint fails to state a claim upon which relief can be granted. Defendants rely upon Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), for the proposition that jurisdiction of this Court cannot be invoked where there is no immediate threat to an individual's constitutional rights and where any chilling effect upon the exercise of protected rights is subjective. Defendants assert that plaintiffs' complaint presents no claim of specific present harm or threat of specific future harm, as required by the Tatum decision.

Plaintiffs argue that the complaint specifically alleges that unlawful activities of defendants have been and are now specifically directed at them. They further argue that the complaint alleges direct, real, and immediate harm, i. e., activity which goes beyond mere passive observation of plaintiffs and which includes physical attacks upon plaintiffs, covert infiltration of plaintiff organizations, and disruption of sources of plaintiffs' financial support. Plaintiffs rely upon recent decisions of this Court which have allowed complaints alleging immediate harm to stand in the face of motions to dismiss. See, e. g., Citizens for a Better Environment v. Rochford, No. 75 C 987 (N.D.Ill.1975); Alliance to End Repression v. Rochford, 407 F.Supp. 115 (N.D.Ill. 1975).

This Court is of the opinion that plaintiffs' complaint, unlike that in Tatum, alleges more than subjective "chill". Plaintiffs' complaint alleges facts which, if proven, would provide for the basis for a claim of immediate harm. Accordingly, defendants' motion to dismiss the complaint for failure to state a claim is denied.

Defendants next argue that this Court lacks subject matter jurisdiction as to defendant City of Chicago on two bases: (1) that a municipality is not deemed a person within the meaning of the Civil Rights Act, 42 U.S.C. § 1983; and (2) that plaintiffs have failed to allege a violation of any Act of Congress or federal law which is necessary to obtain federal question jurisdiction under 28 U.S.C. § 1331.

Plaintiffs agree that there is no subject matter jurisdiction over the City of Chicago under the Civil Rights Act, but argue that this Court retains jurisdiction over defendant City of Chicago under 28 U.S.C. § 1331 because the complaint alleges a claim arising under the Fourteenth Amendment of the Constitution insofar as it alleges violations of plaintiffs' constitutional rights by the City's officers, agents, and employees.

Plaintiffs rely upon a recent Seventh Circuit opinion permitting suit against a municipal corporation under the Fourteenth Amendment and 28 U.S.C. § 1331, Hostrop v. Board of Junior College District # 515, 523 F.2d 569 (7 Cir. 1975).

Plaintiffs' complaint alleges a claim against defendant City and others for the unconstitutional conduct of its police officers and seeks both injunctive relief and damages in excess of $10,000.00. This Court is of the opinion that defendant City's argument based upon lack of jurisdiction is without merit.

Defendants next argue that an examination of the legislative history of the Civil Rights Act discloses Congress' intent that municipalities not be liable for the Civil Rights claims arising under either the Civil Rights Act or the Fourteenth Amendment.

However, it is well established that the Fourteenth Amendment authorizes suits against municipalities for their own activities, Cuyahoga River Power Co. v. City of Akron, 240 U.S. 462, 36 S.Ct. 402, 60 L.Ed. 743 (1915). Clearly, the limitations placed upon the scope of the Civil Rights Act cannot be read to place the same limitations upon the Fourteenth Amendment. This Court holds that defendant City of Chicago is not immune from suit under the Fourteenth Amendment and 28 U.S.C. § 1331.

City defendants next allege that certain of the unlawful activities of defendants occurred more than five years prior to the filing of the complaint in this action and are thus barred by the Illinois Statute of Limitations. Ill.Rev.Stat., ch. 83 § 16. Defendants specifically move to strike paragraphs 10-4, 10-5, 10-6, 10-10(b) and (f), 10-11, 10-12(b) and (d), 10-13, and 10-14 of the complaint for this reason.

Plaintiffs counter defendants' motion by stating that each of these paragraphs alleges that defendants have and are still engaged in a continuing course and pattern of conduct and that defendants fraudulently concealed their activities.

Although the general rule is that the statute of limitations begins to run at the time an alleged wrong occurs, Marcus v. National Life Insurance Company, 422 F.2d 626 (7th Cir. 1970), when a complaint contains allegations of fraudulent concealment of activity (i. e., covert activity), the statute does not begin to run until such time as the plaintiff obtains knowledge of the fraud or in the exercise of due care should have obtained that knowledge. Sperry v. Barggren, 523 F.2d 708 (7th Cir. 1975). Plaintiffs here have alleged a continuing pattern of unlawful activity fraudulently concealed by defendants. This Court is of the opinion that for those counts of plaintiffs' complaint alleging active concealment of intelligence gathering activities, the statute of limitations does not begin to run until actual discovery of the concealment.

Paragraphs 10-4, 10-5, 10-6, 10-10(b) and (f), 10-11, 10-12(b) and (d), 10-13, and 10-14 of the complaint contain allegations of active concealment of defendants' activities. Furthermore, this Court finds that because of the nature of defendants' alleged unlawful activities, plaintiffs could not reasonably have become aware of these activities at the times they were alleged to have occurred. The Court is of the opinion that the filing of the complaint was timely, in light of the fact that plaintiffs could not have become aware of defendants' activities in the exercise of due care.

Accordingly, City defendants' motion to dismiss the above-named paragraphs of the complaint on the grounds of the running of the Illinois Statute of Limitations is denied.

Defendants next argue that the complaint must be stricken for failure to present a "short and plain statement of the claim showing the pleader is entitled to relief" as prescribed by Rule 8, Federal Rules of Civil Procedure. Defendants argue that plaintiffs' complaint contains no more than conclusory allegations unsupported by relevant facts.

Plaintiffs contend that the complaint need only set forth a claim and give the respondents fair notice of its basis, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and that the instant complaint is sufficient to give such notice. They allege that the complaint describes the nature of a theory of wrongful government conduct and alleges specific incidents which support such a theory. Further, plaintiffs allege that their rights have been violated by defendants and then identify the specific injuries.

This court is of the opinion that plaintiffs' complaint sets forth sufficient facts to support its general allegations of unconstitutional government interference with plaintiffs' activities. Defendants have been given sufficient notice of the claim which they will be called upon to defend and will have ample opportunity to use pretrial discovery to define more precisely the disputed facts and issues.

Accordingly, defendants' motion to dismiss the complaint for insufficiency is denied.

Finally, City defendants argue that defendants Johnson, Daniel, Goodrich, Peick, and Rivera are members of the Police Board of the City of Chicago and therefore enjoy a type of legislative immunity from suits for damages. Defendants rely upon the case of Tenny v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), in which the Supreme Court held that state legislators have immunity from liability for legislative acts which cannot be defeated by claims of unworthy purpose. Defendants note that various district and circuit courts have extended the concept of legislative immunity to statutorily created commissions and investigators, Martone v. McKeithen, 413 F.2d 1373 (5th Cir. 1969), and to various local legislative bodies, Shellburne, Inc. v. New Castle County, 293 F.Supp. 237 (D.Del.1968). Defendants further cite several appellate decisions, including one from the Seventh Circuit, which indicate that local legislative bodies enjoy a qualified privilege of immunity based upon good faith performance of their official duties. See McLaughlin v. Tilendes, 398 F.2d 287 (7th Cir. 1968); and Nelson v. Knox, 256 F.2d 312 (6th Cir. 1958). Def...