Hardwick v. Hurley

• Decision Date: 02 May 1961
• Docket Number: No. 12958.,12958.
• Citation: 289 F.2d 529
• Parties: Webster HARDWICK, Jr., Plaintiff-Appellant, v. Bernard HURLEY and Steve Seno, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

289 F.2d 529 (1961)

Webster HARDWICK, Jr., Plaintiff-Appellant, v. Bernard HURLEY and Steve Seno, Defendants-Appellees.

No. 12958.

United States Court of Appeals Seventh Circuit.

May 2, 1961.

Ernst Liebman, Donald Page Moore, Chicago, Ill., for plaintiff-appellant.

Harry H. Pollack, Asst. Corp. Counsel, Chicago, Ill., for appellees.

Before DUFFY and CASTLE, Circuit Judges, and MERCER, District Judge.

DUFFY, Circuit Judge.

This is a suit for damages brought under the Federal Civil Rights Acts, 42 U.S.C.A. §§ 1983, 1985 and 1986. The defendants are Chicago police officers. The District Court dismissed the complaint for failure to state a claim under the Act.

On December 6, 1958, about 2:45 a. m., plaintiff "while to some degree under the influence of alcohol, was driving his car at an excessive rate of speed * * *"¹ on Halsted Street in the City of Chicago. The defendant police officers stopped plaintiff, placed him under arrest and took him to a police station.

Plaintiff was ordered by defendants to expel his breath into a long rubber tube connected with a mechanical device known as a "Harger Drunkometer" which was used by the Chicago Police Department to measure the alcoholic content of an individual's breath. Plaintiff refused to blow into the tube and stated to the officers that he would not take the Harger test.

The complaint alleges the police officers called plaintiff a "wise guy" and proceeded to batter him with their fists, to stomp upon him and to kick him. The beating was inflicted, so the complaint charges, with the intent of punishing plaintiff for his refusal to incriminate himself by taking the Harger test. The complaint then charges the acts of the defendants were committed in the course of performance of their duties as Chicago police officers, and were committed under color of state law.

The complaint disclosed that in Count 1, plaintiff alleged the beatings inflicted upon him violated his due process rights under the Fourteenth Amendment which, plaintiff says, states a claim under 42 U.S.C.A. § 1983. In Counts 2 and 3, the complaint charges violation of sections 1985 and 1986. However, on oral argument before this Court, counsel for plaintiff limited plaintiff's claim for recovery to the liability imposed by section 1983.

Prior to the decision of the Supreme Court in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, and following repeated decisions of our Court such as Stift v. Lynch, 7 Cir., 267 F.2d 237, and Monroe v. Pape, 272 F.2d 365, this Court would have sustained the District Court in dismissing the complaint. Our then understanding of the law is well expressed in Footnote 68 of Justice Frank-furter's dissent in Monroe v. Pape, 365 U.S. at page 240, 81 S.Ct. at page 513: "Most courts have refused to convert what would otherwise be ordinary state-law claims for false imprisonment or malicious prosecution or assault and battery into civil rights cases on the basis of conclusory allegations of constitutional violation."

The real issue now before us in the instant case is whether Monroe v. Pape can be distinguished so as not to be applicable to the case at bar.

Counsel for defendants argue that Monroe v. Pape involved an unlawful search and seizure which immediately involved constitutionally protected rights. Counsel insist that what we have here is an ordinary assault and battery case which should be tried in the state courts. They point out that no confession resulted from the alleged beating and insist that no constitutional right of plaintiff was violated.

A broad interpretation of the Supreme Court's decision in Monroe v. Pape may well open the flood gates and bring into the federal trial courts thousands of assault and battery cases that should never be there. In metropolitan areas where many arrests are made daily, cases based upon this kind of claim may well completely jam what are already crowded trial calendars. Police officers, in making arrests, are often required to use force, and for their own safety, to make search of the persons whom they have arrested. Only a small degree of imagination is required for these prisoners to develop an ordinary arrest into a claim that an attempt was made to force confessions, or to invade other constitutional rights.

The majority opinion in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, makes frequent reference to United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, and Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. The concurring opinion of Justice Harlan ends with...