Calvin v. Conlisk, 72 C 3230.

• Decision Date: 08 November 1973
• Docket Number: No. 72 C 3230.,72 C 3230.
• Citation: 367 F. Supp. 476
• Parties: Ardale CALVIN et al., Plaintiffs, v. James B. CONLISK, Jr., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

367 F. Supp. 476

Ardale CALVIN et al., Plaintiffs, v. James B. CONLISK, Jr., et al., Defendants.

No. 72 C 3230.

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

November 8, 1973.

Robert C. Howard, Kermit B. Coleman, Clare E. Benford, Robert W. Bennett, Martha Jenkins, Lawrence E. Kennon, Marshall Patner and Alexander Polikoff, Chicago, Ill., for plaintiffs.

Richard L. Curry, Corp. Counsel of City of Chicago, and Michael S. Jordan, Asst. Corp. Counsel, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDERS

PERRY, Senior District Judge.

In this civil rights action seven individual plaintiffs and three organizations seek, among other things, an injunction to remedy an alleged failure of the Chicago Police Department to enforce constitutional standards of conduct among police officers. They ask the court to use its equitable powers to order the City of Chicago, the Superintendent of Police and Members of the Police Board to adopt and implement an effective police discipline system, which plaintiffs allege does not exist in various respects. They further pray the court to retain jurisdiction for continuing judicial surveillance.

The seven individual plaintiffs allege they were abused in incidents of alleged police brutality, which incidents it appears were separate and unrelated. The organization plaintiffs, namely the Afro-American Patrolmen's League, Concerned Citizens for Police Reform and the Chicago Urban League, state in the complaint that they have received complaints of police misconduct from hundreds of persons and that they share a common concern for improved race relations and an improved disciplinary system within the Chicago Police Department.

Defendants include individual policemen who plaintiffs allege participated in the acts of police abuse and they are sued for damages. Defendants City, Superintendent and Police Board Members are charged with failure to fulfill their duty to maintain an effective police disciplinary system and plaintiffs, in essence, allege their actions condone and permit, rather than deter, unconstitutional standards of conduct among police officers. Plaintiffs sue the Superintendent and Board members for injunctive relief and ask both that form of relief and damages as to the City.

More specifically, plaintiffs state in their complaint that they seek such declaratory and injunctive relief and damages to redress deprivations under color of law of rights, privileges and immunities secured by the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Title 42 U.S.C. Section 1983. In the original complaint jurisdiction was invoked under Title 28 U.S.C. §§ 1343(3), 1343(4), 2201 and 2202, and plaintiffs set forth that as the action arises under Section 1343(3) no jurisdictional amount is required. (Plaintiffs later moved to amend their complaint as hereinafter set forth).

Shortly after the complaint was filed the defendants filed motions to dismiss. Upon consideration of the motions and memoranda of the parties, the court on April 20, 1973 denied the various motions to dismiss and to strike and dismiss except that it struck that portion of the complaint seeking damages against the City of Chicago.

Subsequently the Supreme Court of the United States handed down decisions in two cases, City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109, and Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407, and in light of these decisions the parties have filed various new motions.

Defendants have moved the court to reconsider its order of April 20, 1973 denying their motion to strike plaintiffs' complaint and dismiss their cause of action on the grounds stated in their original motion of January 15, 1973, and upon the additional ground that plaintiffs' complaint does not present claims that are justiciable, and based upon the decision of the United States Supreme Court in the Gilligan case. The court has reconsidered its earlier order and has considered the memoranda of the parties in support of and in opposition to both the original motions to dismiss and the new one to reconsider.

The Gilligan case arose out of a period of civil disorder on the campus of Kent State University in May 1970. Plaintiffs there filed an action on behalf of themselves and all other students at the state university, alleging that the National Guard, which was called by the Governor to preserve order, violated students' rights of speech and assembly and caused injury and death to some students. Among other things injunctive relief was sought to restrain the Governor from prematurely ordering National Guard troops to duty in civil disorders and to restrain Guard leaders from future violation of students' constitutional rights. The District Court dismissed the suit on the ground that the complaint failed to state a claim upon which relief could be granted. On appeal the dismissal was affirmed in part but the Court of Appeals remanded to the District Court with directions that it resolve the question whether there was and is "a pattern of training, weaponry and orders in the Ohio National Guard which . . . require . . . the use of fatal force in suppressing civilian disorders when the total circumstances are such that nonlethal force would suffice to restore order . . ." Certiorari was granted to review the action of the Court of Appeals.

Chief Justice Burger delivered the opinion of the Court in Gilligan and stated, at page 5, 93 S.Ct. at page 2443:

We can treat the question of justiciability on the basis of an assumption that respondents' claims, within the framework of the remand order, are true and could be established by evidence. On that assumption we address the question whether there is any relief a District Court could appropriately fashion.

It is important to note at the outset that this is not a case in which damages are sought for injuries sustained during the tragic occurrence at Kent State. Nor is it an action seeking a restraining order against some specified and imminently threatened unlawful action. Rather, it is a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard. This far-reaching demand for relief presents important questions of justiciability.

Respondents continue to seek for the benefit of all Kent students a judicial evaluation of the appropriateness of the "training, weaponing and orders" of the Ohio National Guard. They further demand and the Court of Appeals remand would require that the District Court establish standards for the training, kind of weapons, scope and kind of orders to control the actions of the National Guard. Respondents contend that thereafter the District Court must assume and exercise a continuing judicial surveillance over the Guard to assure compliance with whatever training and operations procedures may be approved by that court. Respondents press for a remedial decree of this scope, even assuming that the recently adopted changes are deemed acceptable after an evidentiary hearing by the court. Continued judicial surveillance to assure compliance with the changed standards is what respondents demand.

The Court held that no justiciable controversy was presented in Gilligan because the relief sought by respondents "requiring initial judicial review and continuing surveillance by a federal court over the training, weaponing and orders of the Guard, would therefore embrace critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government".

As the Chief Justice said at page 8, 93 S.Ct. at page 2445:

. . . It would be inappropriate for a district judge to undertake this responsibility, in the unlikely event that he possessed requisite technical competence to do so.

Leaving aside the suits of the individual plaintiffs against the policemen for damages, there are many analogies between this suit and Gilligan, particularly on the main issue as to whether the court has the right to review, order and continue judicial surveillance. Plaintiffs here in their prayer for relief ask the court to grant a permanent injunction "commanding" the Superintendent, Police Board and City, among other things, "to take all appropriate steps within their power to prevent police officers from engaging in unconstitutional misconduct", "to adopt and implement an effective police discipline system", to correct "other deficiencies in the organization and operation of the police discipline system". They also ask the court to permit non-police personnel to receive and investigate complaints of unconstitutional misconduct. They further ask the court to retain jurisdiction and require the Superintendent, Board and City "to report to the Court the steps they have taken to implement and conform with the Court's Order, such reports to be made at three month intervals for at least three years."

The court on the main issue can see dissimilarities but not real differences in the two cases. Gilligan it is true involved a single extraordinary incident. Here there is a series of unrelated acts of alleged misconduct by policemen and an allegation that police officials are following a course of conduct which fails to deter acts of unconstitutional misconduct. The National Guard (military) was involved in Gilligan while a municipal police force (civilian) is involved here. It is true that the National Guard adopted new rules and revised its training and that the plaintiffs in Gilligan were no longer students at Kent and the named defendants were no longer in office. In the instant case there are allegations of continuing and future injury. But as Chief Justice Burger said (at page 5, 93 S.Ct. 2443), the court was not deciding the case on mootness but on whether the claims would present issues that are justiciable.

Plaintiffs here do not seek to have the court involve itself in "weaponing" but certainly...