Benson v. Allphin

Citation786 F.2d 268
Decision Date11 April 1986
Docket NumberNo. 84-2186,84-2186
Parties122 L.R.R.M. (BNA) 2177, 4 Fed.R.Serv.3d 927 William J. BENSON, Plaintiff-Appellee, v. Robert H. ALLPHIN, et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Andrew B. Spiegel, Chicago, Ill., for defendants-appellants.

Paul J. Petit, Betar & Petit, Chicago, Ill., for plaintiff-appellee.

Before BAUER, ESCHBACH, Circuit Judges, and PELL, Senior Circuit Judge. *

ESCHBACH, Circuit Judge.

The plaintiff, a former state employee, alleged in this Sec. 1983 action (1) that the defendant state officials discharged him in retaliation for the exercise of his First Amendment rights and (2) that, after his discharge, the defendants conspired to harass him in violation of his First Amendment rights. The primary questions presented on appeal are (1) whether the district court erred in granting a directed verdict to one of the defendant state officials on the ground that the plaintiff failed to present sufficient evidence to implicate the official in the alleged post-termination conspiracy and (2) whether the district court erred in granting a judgment notwithstanding the verdict to another state official on the ground that the official was qualifiedly immune. For the reasons stated below, we will vacate the directed verdict, vacate the judgment notwithstanding the verdict in part, and remand for a new trial on the remaining claim.

I

This appeal presents another chapter in the dispute between the plaintiff, William Benson, and certain officials of the State of Illinois. An earlier decision of this court, Benson v. Scott, 734 F.2d 1181 (7th Cir.) ("Benson I"), cert. denied, --- U.S. ----, 105 S.Ct. 435, 83 L.Ed.2d 361 (1984), involved a related lawsuit filed against the former Illinois Attorney General and the former Illinois First Assistant Attorney General. In view of our disposition of this appeal, an extended discussion of the evidence presented at the fourteen-day trial is unnecessary. In addition, because the plaintiff is appealing from the district court's grant of a directed verdict for defendant Rummel and a judgment notwithstanding the verdict for defendant Allphin, we must review the evidence in the light most favorable to the plaintiff. Cf. Mathews v. Fairman, 779 F.2d 409, 415 (7th Cir.1985).

Considering the evidence in this manner, the following facts emerge: Benson was employed by the Illinois Department of Revenue ("DOR") from 1971 until his dismissal in 1976. On November 1, 1974, Benson entered into a one-year written contract with the DOR to "undertake projects requiring personal and technical services as assigned by the [DOR] concerning pending investigations for the [DOR]." The contract was terminable at will by either party upon written notice. The parties entered into a similar contract that commenced November 1, 1975, and expired on June 30, 1976. Benson was terminated on June 24, 1976, six days before the second contract was to expire of its own accord.

Benson was initially assigned to assist in the enforcement of the Illinois Cigarette Tax Act, codified at Ill.Rev.Stat. ch. 120, paragraphs 453.1 to .22 (1975) and the Illinois Cigarette Use Tax Act, codified at id., paragraphs 453.31 to .51 (referred to collectively as "Tax Act" or "Act") 1 at the Illinois-Indiana border. 2 Benson lived in South Holland, Illinois, which is not far from the Indiana border, and worked out of a squad room on LaSalle Street in Chicago.

In the latter part of 1971, the DOR placed certain cigarette stands in Indiana under surveillance where it could observe individuals purchasing cigarettes and then transporting them into Illinois without paying the appropriate tax. After assuming the position of Director of the DOR in the latter part of March 1973, defendant Robert Allphin adopted a policy of arresting Tax Act violators and confiscating their vehicles. Benson and his partner, James Kelleher, were involved in the enforcement of this policy. Benson made numerous arrests. He also took photographs of individuals allegedly violating the Tax Act. These photographs were said to include pictures of Chicago police officers, Chicago firemen, and other state, county, and city employees engaged in violations of the Act. Benson retained the negatives of these photographs.

Benson maintained that, from 1974 until the time of his termination, he was ordered not to enforce the Tax Act against state, county, and city employees, especially Chicago police officers. He discussed this matter extensively with his supervisors and co-workers. In addition, Benson informed his supervisors and co-workers that he had taken photographs of Tax Act violations and that he had retained the negatives.

Benson also criticized the DOR's tax-collection policy, and maintained that collection suits were being settled for unacceptably low amounts. 3 Apparently only Allphin and defendant Rummel (the Associate Director of the DOR) were authorized to settle these suits. Benson maintained further that certain taxpayers were making payoffs to DOR personnel in order to escape prosecution.

After Benson discussed his grievances with Allphin and Rummel in the latter part of 1975 and the early part of 1976, his duties at the DOR were changed, in that he was ostensibly assigned in January 1976 to a continuing investigation into the improprieties he had alleged were taking place within the DOR. Allphin and Rummel also told Benson to report only to them, and not to come to the DOR office in Chicago.

Allphin and Rummel instructed Benson not to reveal any investigatory information to the public. However, because he was dissatisfied with the manner in which his superiors were handling the investigation, Benson discussed his allegations with reporters from the Chicago Tribune and Hammond Times in February or March of 1976. Benson also turned over some of his photographs to a reporter in June 1976. As a result of these disclosures, several stories regarding Benson's allegations appeared in the press in March 1976; another series was published in August 1976 after Benson was terminated.

After Benson made these disclosures to the press, Allphin and Rummel tried to keep a tighter rein on him. He was again told not to discuss these matters with anyone outside the DOR. Several meetings were arranged, however, between Benson (along with other DOR personnel) and the Internal Affairs Division of the Chicago Police Department in the spring of 1976. At these meetings, Benson was allowed to discuss the alleged selective enforcement problem and his surveillance photographs. Despite these meetings, Benson still believed that the DOR was not acting in good faith and that his superiors were attempting to cover up the allegations. In early June 1976, he indicated to DOR personnel that he might make further disclosures of his allegations to the public and press. Allphin and Rummel decided that Benson's services were no longer needed, and terminated him on June 24, 1976.

During this same period, Benson and other DOR personnel had become embroiled in federal litigation challenging the DOR's enforcement of the Tax Act. Benson was named as a defendant in several of these civil-rights actions. In addition, an Illinois state trial court in April 1974 had enjoined the enforcement of the Act at the Illinois-Indiana border against persons who purchased cigarettes for their personal consumption and not for resale. The DOR nonetheless, continued its enforcement activities, and as a result was held in contempt in December 1975 by the Illinois state trial court. Benson had testified on behalf of the DOR at the 1975 contempt proceedings. On July 21, 1976, after he had been terminated, Benson filed an affidavit with the state trial-court judge. In the affidavit, he stated that he had been told by his superiors at the DOR to disregard the April 1974 injunction and to distort his testimony at the contempt hearing. Benson claimed further that DOR records had been destroyed and that others had been withheld or altered in violation of the state court's production order. He also discussed the alleged selective enforcement problem.

The Illinois Attorney General sent a letter to Allphin, dated September 2, 1976, which indicated that the State of Illinois, because of conflicts of interest, was withdrawing its representation of the DOR defendants, including Benson, in eight civil-rights suits pending in federal district courts. Allphin and Rummel decided to provide representation at the Department's expense to all DOR defendants except Benson. In addition to withdrawing legal representation for Benson, Allphin and Rummel maintained a campaign of harassment against their former employee. For example, they caused information to be sent to the Social Security Administration and the Internal Revenue Service to encourage investigations of Benson. The reason for these adverse actions against Benson was Allphin and Rummel's dissatisfaction with Benson's disclosures within the DOR, to the press, and to the judiciary.

Benson filed this Sec. 1983 action against Director Allphin and Associate Director Rummel in October 1977. Count I of the amended complaint alleged that, after Benson's termination, Allphin and Rummel conspired to harass him in retaliation for exercising his free-speech rights. Count II alleged that Benson was in fact terminated from his position at the DOR in retaliation for exercising his free-speech rights. The case finally came to trial in October 1983. The court dismissed Rummel as a defendant pursuant to his directed-verdict motion filed at the close of Benson's case-in-chief. At the close of the trial, the jury found in favor of Benson and against Allphin on both counts. It awarded Benson $350,000 for the retaliatory discharge and $3,000 for the failure to provide legal representation after the discharge. Allphin filed motions for...

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