Gibson v. City of Chicago

• Decision Date: 15 December 1988
• Docket Number: No. 87 C 3482.,87 C 3482.
• Citation: 701 F. Supp. 666
• Parties: Michael Eugene GIBSON, Individually and as Special Administrator of the Estate of Eugene Gibson, deceased, Plaintiff, v. The CITY OF CHICAGO, James O'Grady, Dennis Gray and J. Morowally, Defendants.
• Court: U.S. District Court — Northern District of Illinois

701 F. Supp. 666

Michael Eugene GIBSON, Individually and as Special Administrator of the Estate of Eugene Gibson, deceased, Plaintiff, v.The CITY OF CHICAGO, James O'Grady, Dennis Gray and J. Morowally, Defendants.

No. 87 C 3482.

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

December 15, 1988.

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

James P. McCarthy, Terence J. Moran, Asst. Corp. Counsels, City of Chicago, General Litigation, Dept. of Law, Arthur Mooradian, Allan Ackerman, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ZAGEL, District Judge.

Three months after being placed on the Chicago Police Department's medical roll due to mental unfitness, Officer Arthur Novit shot and killed Eugene Gibson.Michael Eugene Gibson, individually and as special administrator of the decedent's estate, filed a two-count complaint against Novit, the City of Chicago, Cook County SheriffJames O'Grady, and two Chicago police officers, Dennis Gray and J. Marowally, contending that the shooting violated Gibson's constitutional rights and the Illinois Wrongful Death Statute.All of the parties except Novit have moved for summary judgment.

I

After several departmental complaints had been lodged against Novit alleging that he used excessive force in performing his duties as a Chicago police officer, the Chicago Police Department("Department") ordered that he undergo psychological evaluation.On 11 January 1983he did so; and it revealed that he was suffering from atypical impulse control disorder, a condition which frequently left him unable to resist the temptation to use force — even excessive force — while carrying out his duties.SeeDSM-III-R: Diagnostic and Statistical Manual of Mental Disorders321-22, 328 (3d ed. rev.1987).

Based on this diagnosis, on March 3 the Department placed him on the medical roll as being mentally unfit for duty; he continued to draw full salary and benefits.In a written order the Department enjoined him from carrying a gun or other deadly weapon, and from "exercising the power of arrest or any other police power."The order also directed him to surrender his Shield, Star, and identification card; and he did so.Although the order contained a signature line for Novit's acknowledgment, he refused to sign.Two other officers (Phillip Chamiak and Dale Marino), however, signed as witnesses.The Department made no attempt to recover Novit's gun (his personal property) or the ammunition it had issued to him; nor did it discipline him for refusing to sign the acknowledgment.

At about 1 a.m. on June 19, Novit saw Gibson in the vicinity of 4115 North Hermitage, Chicago, Illinois.For reasons not spelled out by any of the parties, Novit approached Gibson, identified himself as a Chicago police officer, drew his gun and informed Gibson that he was under arrest.Novit, once again for reasons left unexpressed, then shot Gibson in the chest, killing him.

Following the shooting, the police scoured the area and eventually found a closed pocketknife (apparently related to the shooting); but Gibson's fingerprints were not on it.Officer Marowally filed a report concluding that Novit was assaulted by Gibson and shot him in self defense.Officer Antczak filed a supplementary report reaching the same conclusion.But, after an investigation, the Office of Professional Standards determined that Novit shot Gibson without justification, and that he violated Department Rules 6and39(now codified as Rules 3and30).¹

On June 22 O'Grady suspended Novit for violating Department Rules; he also filed charges with the Chicago Police Board seeking Novit's removal or other punishment.At the end of the suspension period, however, Novit resigned and O'Grady requested that the charges against him be withdrawn; they were.Novit was not charged with a criminal offense (at least as of this date).

The plaintiff alleges that Novit was acting under color of State law when he shot Gibson; hence the sec. 1983 action.He also claims that Marowally, Gray and Antczak filed false reports in a concerted effort to cover up Novit's blunder.

The allegations against the City and O'Grady are a bit more involved.According to the complaint, the City and O'Grady are liable because they took no action to recover Department-issued ammunition from Novit, and because they failed to inform the "proper authorities"(such as the State agency which issues licenses to carry firearms) that Novit had been placed on the medical roll as mentally unfit for duty.The plaintiff also claims that the City and O'Grady have failed to promulgate adequate policies "regarding the retention of firearms by police officers who have been placed on the medical roll due to mental unfitness"; and that the Department lacks adequate procedures to confiscate the weapons of officers deemed mentally unfit for duty, and to train and supervise officers responsible for recovering Department property from officers on medical leave.Para. 41.These failed policies and procedures were adopted with "deliberate indifference indicating reckless disregard for the rights of Gibson and other citizens of the City of Chicago * * * by failing to protect them from police officers", such as Novit, who are allowed to keep their weapons after being found mentally unfit for duty.Para. 42.

The City and O'Grady, the complaint continues, "knew or should have known" that these policies and procedures were inadequate; and finally, that the policies were the proximate cause of Gibson's death, thus violating his constitutional rights to be "secure in his person and free from punishment" without due process of law.²

II

In order to recover under sec. 1983, a plaintiff must plead and prove four elements: he held a constitutionally protected interest; he was deprived of his interest in violation of the Constitution; the defendant caused the deprivation; and the defendant acted under color of state law.Donald v. Polk County,836 F.2d 376, 379(7th Cir.1988).As we make clear below, we are convinced that the plaintiff has no sec. 1983 claim against any of the defendants.

A

As we noted at the outset, three months after being ordered not to carry a gun or to exercise any police authority, and having surrendered his Star, Shield and identification card, Novit shot and killed Gibson while purporting to exercise police authority.Was he acting under color of State law within the meaning of sec. 1983We do not think so.

The defendants' argument is straightforward: they concede that Novit was employed by the Department when he shot Gibson, but they argue that his employment status is not a sufficient condition to imbue his actions with the color of State law.Rather, they contend that the March 3 order "stripped" Novit of his authority as a police officer; it follows, therefore, that Novit was not acting under color of State law when he shot Gibson three months later.

The plaintiff's response, as best as we can make it out, consists of three propositions: first, the City is being hypocritical because it would not claim that Novit was acting as a private party if he had shot a "fleeing felon" instead of an innocent bystander; second, Novit was able to kill Gibson only by virtue of his status as a police officer (which allowed him to carry the gun) and third, Novit's conduct falls within sec. 1983 because he was known throughout the neighborhood to be a police officer.It is to these arguments we now turn.

The plaintiff's first argument, that Novit's actions were under color of State law because the City is being hypocritical, requires little comment.The argument runs like this: if Novit's conduct had been justified, then the City would not have denied he was acting under color of State law; indeed it would have commended Novit; therefore, because the City would treat Novit as an authorized police officer if he had acted justifiably, it should be required to treat him similarly though he acted unjustifiably.First, speculation will not save the day for a party opposing a motion for summary judgment.And second, even if the plaintiff's conjecture were fact and the City had commended Novit for foiling a crime, it does not follow that Novit would have been acting under color of State law when he did so.Private citizens who perform heroic acts or foil crimes are commended by public officials all of the time, but it does not mean that their acts are taken under color of State law.SeeCarey v. Continental Airlines, Inc.,823 F.2d 1402, 1404(10th Cir.1987);Lee v. Town of Estes Park,820 F.2d 1112, 1115-16(10th Cir.1987).

The plaintiff's second attempt to portray Novit's actions as being taken under color of State law revolves around Novit's status as a police officer, which, the plaintiff contends, allowed Novit to carry the gun he used to kill Gibson.We find this statement puzzling.Under Illinois law, all citizens, not just police officers, are allowed "to keep and bear arms".³SeeIll. Const. art. 1, sec. 22(1970).(There are qualifications, seeIll.Ann.Stat. ch. 38, para. 83-8(Smith-Hurd 1987), but they are not relevant here.)

Nevertheless, even if it was Novit's status as a police officer that allowed him to carry the gun, we do not believe that it would be sufficient to render his actions "under color of" State law.Followed to its logical conclusion, such a principle would mean that if Novit used his gun to commit murder or armed robbery it would constitute conduct under color of State law; and thus actions for which the State would bear responsibility.Needless to say, we are reluctant to embrace a principle that would engender such results; it would sever the "under color of" law requirement from its conceptual moorings and allow sec. 1983 to reach purely private conduct simply because the perpetrator is a public employee who happens to use public property to achieve his unlawful end.Section 1983 is...