Gibson v. City of Chicago

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation910 F.2d 1510
Docket Number89-1115,Nos. 88-3488,s. 88-3488
PartiesMichael Eugene GIBSON, Individually and as Special Administrator of the Estate of Eugene Gibson, Deceased, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation; Arthur Novit, Individually and in his Official Capacity as a former Chicago Police Officer; James O'Grady, Individually and in his Official Capacity as the Former Acting Superintendent of the Chicago Police Department; J. Marowally, Star # 4881, Individually and in his Official Capacity as a Chicago Police Officer; and Dennis Gray, Star # 13605, Individually and in his Official Capacity as a Chicago Police Officer, Defendants-Appellees.
Decision Date23 August 1990

Daniel Radakovich, Daniel T. Coyne, Alan M. Freedman, Bruce H. Bornstein, Freedman & Bornstein, Chicago, Ill., for plaintiff-appellant.

James P. McCarthy, Corp. Counsel, Office of the Corp. Counsel, Allan A. Ackerman, Judson H. Miner, Ruth M. Moscovitch, Nina Puglia, Asst. Corp. Counsel, Terence J. Moran, Office of the Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Plaintiff-appellant Michael Eugene Gibson, on behalf of the decedent, Eugene Gibson, brought suit under 42 U.S.C. Sec. 1983 against the City of Chicago and several members of the Chicago Police Department. The decedent was shot and killed by Officer Arthur Novit shortly after Novit had been placed on the Department's medical roll as mentally unfit for duty. Mr. Gibson appeals a grant of summary judgment in favor of the City of Chicago, the Acting Superintendent of Police, and certain Chicago police officers. He also appeals the dismissal of his claim against Officer Novit and the dismissal of his pendent state law wrongful death claim. For the following reasons, we affirm the dismissal of the section 1983 claim against Novit and the grants of summary judgment for Acting Superintendent O'Grady and Officers Marowally and Gray on the cover-up claim. However, we reverse as premature the grants of summary judgment in favor of the City and O'Grady in his official capacity on the municipal liability claim, and reverse the grant of summary judgment in favor of O'Grady in his individual capacity on the supervisory liability claim.

I BACKGROUND
A. Facts

Between 1980 and the end of 1982, Chicago police officer Arthur Novit was the subject of several public complaints alleging that he had used excessive force in the performance of his duties. In response to these complaints, the Chicago Police Department ordered Officer Novit to undergo a psychological evaluation. The evaluation revealed that Novit suffered from atypical impulse control disorder, a condition that frequently drove Novit to use excessive force when carrying out his police duties. On March 3, 1983, in response to this diagnosis, the Department placed Novit on the medical roll (i.e., medical leave status) and declared him mentally unfit for duty. While on the medical roll, Novit continued to receive his full salary and benefits. The Department also issued Novit a written order that prohibited him from carrying his gun or any other deadly weapon and directed him not to "exercise the power of arrest or any other police power." 1 The order also commanded Novit to turn in his shield, star, and police identification card. Below the terms of the order was a signature line for Novit's acknowledgment. Although Novit refused to sign the acknowledgment, 2 two other officers signed the signature blanks provided for witnesses.

Although Officer Novit did surrender his star, shield, and identification card, the Department made no attempt to recover Novit's service revolver or the ammunition it had issued to him. 3 The Department also took no disciplinary action against Novit for his failure to sign the acknowledgment The initial police reports of the incident, prepared by Officers Marowally and Gray, concluded that Novit had been the victim of an aggravated assault and that his shooting of Gibson was, therefore, a justifiable homicide. However, a subsequent investigation by the Office of Professional Standards (OPS), determined that Novit shot Gibson without justification and violated two Department rules: one that prohibits an officer from disobeying a "lawful order or directive," and another that "requires a police officer to make oral and written reports whenever he discharges a firearm." Gibson v. City of Chicago, 701 F.Supp. 666, 667 & n. 1 (N.D.Ill.1988).

                on the order.  On June 19, 1983, approximately three months after being placed on the medical roll, Officer Novit encountered Eugene Gibson in the neighborhood where both men lived. 4   For reasons unexplained on the record, Novit identified himself as a police officer, drew his gun, informed Gibson that he was under arrest, and then fatally shot Gibson in the chest
                

On June 22, 1983, Acting Superintendent of Police James O'Grady suspended Novit for thirty days for violation of Department rules and filed charges with the Chicago Police Board seeking Novit's discharge. Novit, however, tendered his resignation from the police force. In response to Novit's resignation, O'Grady had the departmental charges dropped. As of the time of the filing of the district court opinion, Novit had not been charged criminally in the matter.

B. Procedural Posture
1. The section 1983 action

Michael Eugene Gibson, individually and as special administrator for the estate of his father, Eugene Gibson, brought suit under 42 U.S.C. Sec. 1983 against the City of Chicago, Officers Novit, Marowally, Gray, and Acting Superintendent O'Grady. 5 The complaint alleged that Novit, acting in his capacity as a police officer and under color of state law, shot and killed Eugene Gibson without probable cause and deprived Gibson of his constitutional rights, including the right to due process of law. R.1 at 8, p 46. The complaint further alleged that defendants Marowally and Gray filed false police reports in an effort to cover up Novit's misconduct, and that defendant O'Grady also took action to cover up Novit's misconduct. R.1 at 6, pp 32, 33, and 37. Finally, the complaint asserted that Acting Superintendent O'Grady and the City of Chicago had failed to promulgate adequate procedures to deal with the recovery of firearms and ammunition issued to police officers who had been placed on medical leave due to mental unfitness. R.1 at pp 40-41. These inadequate procedures, according to the complaint, constituted "deliberate indifference indicating reckless disregard" for the rights of the decedent and the other citizens of Chicago. R.1 at 7-8, p 42. Gibson also asserted a pendent state wrongful death claim against Novit.

2. District court disposition
a. motion to dismiss

Defendants O'Grady, Marowally, Gray, and the City moved under Fed.R.Civ.P. 12(b)(6) to dismiss the section 1983 complaint for failure to state a claim. In denying the motion to dismiss, the district court stated that

[t]he motion to dismiss turns, primarily, on the City defendants' contention that Novit's actions on the night in question were not "under color of state law" as that phrase is used in 42 U.S.C. Sec. 1983. In support of this argument, they assert that, in connection with his medical leave status, Novit was expressly barred from carrying a firearm or exercising the power of arrest. They also claim he was These claims all go beyond the facts stated in the complaint. Thus, while the court believes the City defendants may have a good defense should these facts prove to be true, it must nevertheless deny the motion to dismiss. The arguments may be raised again in the form of a summary judgment motion after the parties have had the opportunity to conduct discovery on the issue.

required to surrender his badge and police identification card. Novit's service revolver, they observe, was the personal property of the officer and not subject to department control.

R.28 at 2.

Subsequent to its denial of the defendants' motion to dismiss, the district court limited discovery to the color of law issue. R.29; R.41 at 2. The case later was transferred to a different judge, and the parties were given time to conduct discovery on the color of law issue. After the close of discovery, both the plaintiff and all defendants except Officer Novit moved for summary judgment. 6

b. dismissal of Novit on the color of law issue

In evaluating the other defendants' motion for summary judgment, the district court first considered whether Novit acted under color of state law when he shot Gibson. Although the defendants conceded that Novit was an employee of the Chicago Police Department when he shot Gibson, the district court concluded that Novit did not act under color of law because the Department's March 3 order divested him of all power and authority to act as a police officer. 701 F.Supp. at 670-71. Thus, reasoned the court, Novit possessed no police authority to misuse, and therefore was not acting as a policeman when he shot Gibson:

The Department ordered Novit not to exercise any police authority. For all intents and purposes Novit was dispossessed of all power: authority that cannot be translated into action is no authority at all. Lacking any authority to act as a police officer, Novit was not acting "under color of" State law when he shot Gibson.

Id. at 670-71 (emphasis in original). Because the district court concluded that Novit had not acted under color of state law, and because action under color of state law is a jurisdictional prerequisite to a section 1983 claim, see Robinson v. Bergstrom, 579 F.2d 401, 404 (7th Cir.1978), overruled on other grounds, Polk County v. Dodson, 454 U.S. 312, 321, 102 S.Ct. 445, 451, 70 L.Ed.2d 509 (1981), the district court dismissed Gibson's claim against Novit for lack of subject matter jurisdiction.

c. summary judgment for the City on the municipal...

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