Dunlap v. City of Chicago

• Decision Date: 19 July 1977
• Docket Number: No. 76 C 2957.,76 C 2957.
• Citation: 435 F. Supp. 1295
• Parties: Rev. A. I. DUNLAP, Edgar Jackson, Suzanne Davenport, Earley Benton, Individually and as representatives of all other persons similarly situated, and Dr. Martin Luther King, Jr. Movement, Inc., Plaintiffs, v. The CITY OF CHICAGO, an Illinois Municipal Corporation, Mayor Richard J. Daley, James M. Rochford, Police Superintendent, Charles Pepp, Deputy Chief, Fred Rice, Commander, Kenneth Earner, John Doe, Richard Roe, and others whose names are not presently known to the Plaintiffs, Defendants.
• Court: U.S. District Court — Northern District of Illinois

435 F. Supp. 1295

Rev. A. I. DUNLAP, Edgar Jackson, Suzanne Davenport, Earley Benton, Individually and as representatives of all other persons similarly situated, and Dr. Martin Luther King, Jr. Movement, Inc., Plaintiffs, v. The CITY OF CHICAGO, an Illinois Municipal Corporation, Mayor Richard J. Daley, James M. Rochford, Police Superintendent, Charles Pepp, Deputy Chief, Fred Rice, Commander, Kenneth Earner, John Doe, Richard Roe, and others whose names are not presently known to the Plaintiffs, Defendants.

No. 76 C 2957.

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

July 19, 1977.

Singer, Stein & Green, Chicago, Ill., for plaintiffs.

William R. Quinlan, James P. Daley, Chicago, Ill., for the City of Chicago, Richard J. Daley, James Rochford, Charles Pepp and Fred Rice.

MEMORANDUM DECISION

MARSHALL, District Judge.

On July 17, 1976, plaintiffs participated in a march sponsored by the Dr. Martin Luther King, Jr. Movement, Inc., in a community on the south side of Chicago known as Marquette Park. During the march, a hostile crowd insulted the marchers and hurled rocks, bottles, bricks and explosives at them. Many participants in the march were injured. Thereafter, plaintiffs brought this civil rights action for damages against the City of Chicago, Mayor Daley, Police Superintendent James M. Rochford, Deputy Chief Charles Pepp, Commander Fred Rice, and individual officers of the Chicago Police Department who were present at the march. Reduced to bare essentials, plaintiffs' theory is that defendants, by action and inaction, breached their duty to protect the plaintiffs as they tried to express their opposition to racism in a peaceful and lawful manner. Jurisdiction is here under 28 U.S.C. § 1343 and 28 U.S.C. § 1331 to redress rights protected under the Fourteenth Amendment and under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Defendants' motion to dismiss has been fully briefed and is ready for decision.

The factual background of the plaintiffs' activities has been fully stated in two earlier cases stemming from the activities of the Dr. Martin Luther King, Jr. Movement and its leaders, Rev. Alexander I. Dunlap and Rev. Edgar Jackson, in the spring and summer of 1976. Dr. Martin Luther King, Jr. Movement, Inc. v. City of Chicago, No. 76 C 2483 (N.D.Ill. 1977), 435 F.Supp. 1289 (King I), and Dr. Martin Luther King, Jr. Movement, Inc. v. City of Chicago, 419 F.Supp. 667 (N.D.Ill. 1976) (King II). For purposes of ruling on the motion to dismiss the instant action (King III), the following statement is sufficient.

On July 12, 1976, in King I, Judge Grady granted plaintiffs' motion for a preliminary injunction permitting members of the movement to march in the Marquette Park area. Specifically, Judge Grady ordered the defendant, Department of Streets and Sanitation of Chicago, to issue a parade permit to the plaintiffs for July 17, 1976, to march and assemble along a prescribed route, at a set time, and in limited numbers. Judge Grady further ordered that "defendants shall provide police in such numbers as in their professional judgment are required to afford adequate protection to plaintiffs." In his memorandum accompanying the order, Judge Grady recognized that the parade might stimulate some violence, but expressed the view that "the parties here can, by the exercise of good judgment in their public pronouncements, do much to alleviate the situation." Although plaintiffs wished to march on July 10, Judge Grady delayed the march until July 17 to enable the City to organize police protection for the marchers.

Judge Grady's hopes that the march would be peaceful did not come to pass. Shortly after the march was commenced and aborted by the violent bystanders, plaintiffs moved in King I for a rule to show cause why defendants should not be held in contempt for violating that portion of the July 12 order requiring defendants to provide adequate police protection. Plaintiffs orally characterized the proceeding as one for civil, not criminal contempt. Transcript of Proceedings on August 31, 1976, at 3 (hereinafter "Transcript"). Judge Grady held a two-day hearing on the motion and denied it on September 1, 1976. In an oral ruling, Judge Grady summarized his conclusions as follows:

I find no evidence whatsoever that the police department or any individual police officers violated the order of this Court. On the contrary, I find that the police of the City of Chicago on this occasion conducted themselves with exemplary courage and dedication. Transcript at 240.

Meanwhile, plaintiffs had filed their instant action for damages.¹ The repetitious complaint is in five counts, each relying on a different legal theory. Count I alleges that defendants intentionally assaulted plaintiffs and committed battery upon them. Count II alleges that defendants failed to apprehend or stop hostile bystanders as they threw debris upon the marchers. Count III alleges that the police and other defendants conspired to encourage and incite violence against the plaintiffs. Count IV, which is reminiscent of Count II, alleges that defendants neglected or refused to stop wrongful acts which caused injury to the plaintiffs. Count V seeks damages against the City of Chicago based on a theory of respondeat superior.

I. Justiciability

First, defendants claim that the complaint as a whole must be dismissed because the controversy is nonjusticiable. They assert that courts are not equipped to evaluate police practices and have been warned by the Supreme Court to avoid intrusion into the operation of a police department. Defendants rely on Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), and Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1974). But those cases do not support defendants' position. In all of them, the Court cautioned lower federal courts not to issue unnecessary mandatory injunctions which interfere with the internal management of police departments. Here, plaintiffs are not interested in enjoining anything and do not invoke the court's equitable powers. Instead, they seek damages to redress past injury. Moreover, the above cases reaffirm the principle that before a court can act, a plaintiff with a concrete injury must stand before the court. Here, plaintiffs do claim that they have suffered specific and serious injuries resulting from defendants' alleged unconstitutional acts and omissions on July 17, 1976. The subject matter of the controversy is appropriate for judicial resolution.

A corollary of defendants' nonjusticiability argument is that plaintiff Dr. Martin Luther King, Jr. Movement, Inc., lacks standing to be a plaintiff. In Calvin v. Conlisk, 534 F.2d 1251 (7th Cir. 1976), the court held that the plaintiff organization lacked standing to sue because the threat of injury to its members was too remote and hypothetical. Here, on the other hand, the injury to the plaintiff organization was very real. Many marchers who were injured were members of the plaintiff organization. The King Movement was the sponsor of the march. These facts provide a sufficient basis for standing and distinguish the instant case from Calvin.

Not only is the controversy justiciable, but it is clear that the complaint states a claim upon which relief may be granted. Taking the allegations of the complaint as true, plaintiffs were engaged on July 17 in peaceful expression of their views in public, an activity which is generally protected by the First Amendment and was specifically authorized by Judge Grady's order. Section 1983 imposes an affirmative duty upon police officers to protect speakers who are airing opinions which may be unpopular. "A police officer has the duty not to ratify and effectuate a heckler's veto, nor may he join a moiling mob intent on suppressing ideas. Instead, he must take reasonable action to protect from violence persons exercising their constitutional rights. Citations omitted And, in the absence of a speaker's exhortation to violence, in carefully defined circumstances, `state officials are not entitled to rely on community hostility as an excuse not to protect, by inaction or affirmative conduct, the exercise of fundamental rights.'" Glasson v. City of Louisville, 518 F.2d 899, 906 (6th Cir. 1975), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1976); citing Smith v. Ross, 482 F.2d 33, 37 (6th Cir. 1973).

As the court in Glasson pointed out, the police officers may defend on the grounds that their conduct was objectively reasonable and was undertaken in good faith, considering all the facts and circumstances. Id. at 909-910; Foster v. Zeeko, 540 F.2d 1310, 1314 (7th Cir. 1976); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). But for present purposes, it is clear that plaintiffs' allegations are actionable despite the fact that the court may ultimately conduct a detailed inquiry into the reasonableness of the police conduct on July 17, 1976.

II. Issue Preclusion

Next, defendants claim that plaintiffs are barred from bringing this action because all issues are decided against them by Judge Grady in the contempt hearing in King I. Defendants' attempt to foreclose this action under the doctrine of issue preclusion is misplaced.

Simply stated, defendants rely on the principle that "any fact, question or matter in issue and directly adjudicated or necessarily involved a determination of an action before a court of competent jurisdiction in which a judgment or decree is rendered on the merits, is conclusively settled by the judgment therein and cannot be relitigated in any future action between the parties or privies." Palma v. Powers, 295 F.Supp. 924, 933 (N.D.Ill. 1969). The doctrine of issue preclusion or collateral estoppel preserves judicial economy by preventing relitigation of the same issue and...