Calvin v. Conlisk, No. 74-1289

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUMMINGS, PELL and TONE; CUMMINGS
Citation520 F.2d 1
PartiesArdale CALVIN et al., Plaintiffs-Appellants, v. James B. CONLISK, Jr., etc., et al., Defendants-Appellees. Seventh Circuit. Heard
Docket NumberNo. 74-1289
Decision Date21 February 1975

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520 F.2d 1
Ardale CALVIN et al., Plaintiffs-Appellants,
v.
James B. CONLISK, Jr., etc., et al., Defendants-Appellees.
No. 74-1289.
United States Court of Appeals,
Seventh Circuit.
Heard Feb. 21, 1975.
Decided June 30, 1975.
Rehearing Denied Sept. 3, 1975.

Page 3

Robert C. Howard, Martin H. Redish, Alexander Polikoff, Arthur R. Waddy, Gerald J. Muller, Chicago, Ill., for plaintiffs-appellants.

Richard F. Friedman, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, PELL and TONE, Circuit Judges.

CUMMINGS, Circuit Judge.

This action was brought under the Civil Rights Act, 42 U.S.C. § 1983, to redress alleged deprivations under color of law of rights, privileges and immunities secured by the First, Fourth, Fifth, Sixth and Fourteenth Amendments. 1 The plaintiffs are seven individuals, the Afro-American Patrolmen's League, Inc., the Concerned Citizens for Police Reform, and the Chicago Urban League. All of the organizational plaintiffs are Illinois not-for-profit corporations. The defendants were twelve named police officers, 2 the Chicago Superintendent of Police, 3 the five members of the Police Board, and the City of Chicago.

Besides detailing incidents in which the constitutional rights of the individual plaintiffs were supposedly violated by the named policemen and unknown John Doe policemen, the plaintiffs alleged that those incidents of police misconduct "are representative and exemplary of many similar occurrences of misconduct by Chicago policemen against civilians recurring over the course of many years, each of which involves the common element of excessive or unwarranted use of physical force." The complaint further states that unless defendants are enjoined, plaintiffs' and other persons' rights to be free from "excessive or unwarranted physical force by policemen * * * ; unlawful arrest without a warrant or probable cause * * * ; illegal search and seizure and other arbitrary and abusive police practices" will continue to be violated. Plaintiffs also allege that the Superintendent of Police, the Police Board members, and the City of Chicago

"have the duty to prevent such misconduct and to discipline police officers who engage in it. However, they have failed to fulfill this duty, and have instead followed a course of conduct that condones, and in effect encourages such abusive misconduct. Their course of conduct is manifested particularly in the operation by these defendants of a police discipline system that, as a pattern or practice, does not make thorough investigations of such abusive misconduct and does not take

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appropriate disciplinary action against police officers who engage in it."

Plaintiffs further alleged that civil damage suits were an inadequate remedy because they lack deterrent effect. The plaintiffs complained that policemen bear neither the costs of such litigation nor of the final damage judgment, if any, and that adequate disciplinary action is not taken by the Department following a successful civil suit. Plaintiffs therefore sought an injunction against the City and the official defendants, 4 ordering them to take all appropriate steps within their power to prevent police officers from engaging in unconstitutional misconduct and to discipline officers who engage in such misconduct. In that regard, plaintiffs attacked the adequacy of the present internal disciplinary machinery and requested that the court order the institution of an effective police discipline system to handle complaints of unconstitutional police misconduct. Damages were asserted against the defendant police officers for violation of the individual plaintiffs' constitutional rights. Counterclaims were filed by nine of the defendant police officers seeking damages for bodily pain and mental anguish caused by the individual plaintiffs.

In a memorandum opinion 5 relying primarily upon Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407, the district court granted the motion of the City and the official defendants to dismiss the cause of action against them on the ground that the claim for declaratory and injunctive relief presented a non-justiciable controversy. 367 F.Supp. at 479-481, 484.

Acknowledging the possibility that its justiciability determination might be reversed on appeal, the district court went on to rule that the complaint failed to confer jurisdiction upon the court over the City of Chicago. 367 F.Supp. at 482-484. In rejecting allegations of jurisdiction under 28 U.S.C. § 1343, the court relied on City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109. The district judge also ruled that there was no federal question jurisdiction over the City under 28 U.S.C. § 1331 because

"(t)his court cannot see that the equitable claim here against the City is so capable of evaluation in monetary terms as to satisfy the jurisdictional amount requirement * * *. It does not seem that plaintiffs have a proper basis on which to allege an amount in controversy as to the City exceeding the $10,000 jurisdictional minimum, individually, or in the aggregate, either ad damnum, or by way of injunctive relief." 367 F.Supp. at 484.

Finally, the court refused to exercise pendent jurisdiction. 367 F.Supp. at 483.

At defendants' request, the district court dismissed the three plaintiff organizations as parties. 6 The court also dismissed

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the 25 John Doe defendants for lack of jurisdiction because they had not been served and no appearance was entered for them. 7 367 F.Supp. at 486. The court refused to grant plaintiffs' motion to dismiss the nine counterclaims of defendant policemen, and certified this interlocutory appeal pursuant to 28 U.S.C. § 1292(b). 367 F.Supp. at 486. Only the counterclaims and the seven individual damage actions remained in the case after the district court's November 8, 1973, decision.

Justiciability of Police Discipline Issues

Originally the district court denied defendants' motion to dismiss the complaint except insofar as damages were sought from the City. However, on July 10, 1973, the defendants requested the court to reconsider on the basis that the complaint failed to present justiciable claims under the just released decision in Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407. As seen, the district court accepted this argument. We do not deem Gilligan to be controlling and therefore reverse.

In Gilligan, plaintiffs were students at Kent State University in Ohio. There the court of appeals thought equitable relief would be appropriate if there were a pattern of training in weaponry and orders of the Ohio National Guard favoring the use of fatal force to suppress civilian disorders where nonlethal force would suffice. Morgan v. Rhodes, 456 F.2d 608 (6th Cir. 1972). In a five-to-four opinion, 8 the Supreme Court held that no justiciable controversy was presented where the plaintiffs were calling on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard. In conflict with Article I, Section 8, Clause 16 of the Constitution with respect to the militia, such injunctive relief would embrace "critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government." 413 U.S. at 7, 93 S.Ct. at 2444. The Chief Justice's opinion for the Court observed that this type of governmental action was intended to be left to the political branches, directly responsible to the elective process. However, the Court concluded that its opinion should not be read to "hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel, whether by way of damages or injunctive relief." 413 U.S. at 11-12, 93 S.Ct. at 2447.

In Gilligan, the Court appeared to rely principally on the political question doctrine advanced by Judge Celebrezze in his dissent to the opinion of the Sixth Circuit. 413 U.S. at 7-12, 93 S.Ct. 2440. Traditionally, this doctrine has been invoked to restrain the entrance by the federal courts into areas which are assigned by the Constitution to the control of the Legislative and Executive Branches of the federal Government. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947. There is no provision of the Constitution analogous to Article I, Section 8, Clause 16 (relied upon in Gilligan), that would be applicable to this

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case, which involves an area within the control of a municipal agency, rather than a co-equal branch of the federal Government. Furthermore, the cases have noted a strong reluctance of federal courts to issue injunctions of the type sought here, unless based upon a continuing course of conduct, rather than a single incident or isolated series of incidents. See Allee v. Medrano, 416 U.S. 802, 815-816, 94 S.Ct. 2191, 40 L.Ed.2d 566, and cases cited therein, especially note 9. Gilligan stemmed from a single incident of the Ohio National Guard's use of force, while plaintiffs here allege a persistent course of unconstitutional police conduct apparently extending over a period of years.

Less than a year after Gilligan was decided and some six months after the district court rendered its memorandum opinion in this case, the Supreme Court decided Allee v. Medrano, supra. Like the instant case, plaintiffs there sought injunctive relief against the police under the Civil Rights Act. The Court held the district court's injunction against intimidation of the plaintiffs to be appropriate, stating that where "there is a persistent pattern of police misconduct, injunctive relief is appropriate." 416 U.S. at 815, 94 S.Ct. at 2200, citing Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. Chief Justice Berger, the author of Gilligan, dissented in Allee and, while not actually...

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40 practice notes
  • City of Milwaukee v. Saxbe, No. 76-1163
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 12, 1976
    ...in Giancana v. Johnson, 335 F.2d 366 (7th Cir. 1964), cert. denied, 379 U.S. 1001, 85 S.Ct. 718, 13 L.Ed. 702 (1965). In Calvin v. Conlisk, 520 F.2d 1, 8-9 (7th Cir. 1975) (Calvin I ), vacated, 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976), the panel's opinion recognized that the Gautr......
  • Molina v. Richardson, No. 76-2810
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 21, 1978
    ...agree, (in light of the holdings in several other Circuits, see e. g., Gagliardi v. Flint, 564 F.2d 112 (3rd Cir. 1977); Calvin v. Conlisk, 520 F.2d 1 (7th Cir. 1975); Williams v. Brown, 398 F.Supp. 155 (N.D.Ill.1975), and amidst strong indications from the Supreme Court, City of Kenosha v.......
  • Mahone v. Waddle, No. 76-1377
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 24, 1977
    ...425 U.S. 916, 96 S.Ct. 1518, 47 L.Ed.2d 768 (1976); Hostrop v. Board of Junior Colleges, 523 F.2d 569 (7th Cir. 1975); Calvin v. Conlisk, 520 F.2d 1 (7th Cir. 1975), vacated on other grounds, 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976) (allegations similar to those of the instant cas......
  • U.S. v. City of Chicago, Nos. 76-1113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 11, 1977
    ...has been recognized by the Supreme Court and by this court. City of Kenosha v. Bruno, 412 U.S. at 514, 93 S.Ct. 2222; Calvin v. Conlisk, 520 F.2d 1, 8 (7th Cir. 1975), vacated on other grounds, 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976). Section 1331, however, unlike section 1343, r......
  • Request a trial to view additional results
40 cases
  • City of Milwaukee v. Saxbe, No. 76-1163
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 12, 1976
    ...in Giancana v. Johnson, 335 F.2d 366 (7th Cir. 1964), cert. denied, 379 U.S. 1001, 85 S.Ct. 718, 13 L.Ed. 702 (1965). In Calvin v. Conlisk, 520 F.2d 1, 8-9 (7th Cir. 1975) (Calvin I ), vacated, 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976), the panel's opinion recognized that the Gautr......
  • Molina v. Richardson, No. 76-2810
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 21, 1978
    ...agree, (in light of the holdings in several other Circuits, see e. g., Gagliardi v. Flint, 564 F.2d 112 (3rd Cir. 1977); Calvin v. Conlisk, 520 F.2d 1 (7th Cir. 1975); Williams v. Brown, 398 F.Supp. 155 (N.D.Ill.1975), and amidst strong indications from the Supreme Court, City of Kenosha v.......
  • Mahone v. Waddle, No. 76-1377
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 24, 1977
    ...425 U.S. 916, 96 S.Ct. 1518, 47 L.Ed.2d 768 (1976); Hostrop v. Board of Junior Colleges, 523 F.2d 569 (7th Cir. 1975); Calvin v. Conlisk, 520 F.2d 1 (7th Cir. 1975), vacated on other grounds, 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976) (allegations similar to those of the instant cas......
  • U.S. v. City of Chicago, Nos. 76-1113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 11, 1977
    ...has been recognized by the Supreme Court and by this court. City of Kenosha v. Bruno, 412 U.S. at 514, 93 S.Ct. 2222; Calvin v. Conlisk, 520 F.2d 1, 8 (7th Cir. 1975), vacated on other grounds, 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976). Section 1331, however, unlike section 1343, r......
  • Request a trial to view additional results

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