Schnell v. City of Chicago

Citation407 F.2d 1084
Decision Date17 March 1969
Docket NumberNo. 17147.,17147.
PartiesFrederick T. SCHNELL, individually and as President of the Chicago chapter of the American Society of Magazine Photographers; P. Michael O'Sullivan; Howard Michael Berliant; and Daniel D. Morrill, on behalf of themselves and all other members of the press similarly situated, Plaintiffs-Appellants, v. CITY OF CHICAGO; James B. Conlisk, Superintendent of Police of the City of Chicago; and certain officers of the Police Department of the City of Chicago, whose true identities are unknown to plaintiffs, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Stanley A. Bass, Edwin A. Rothschild, David C. Long, Willard J. Lassers, Chicago, Ill., for appellants.

Irving Leuchter, Newark, N. J., amicus curiae.

Raymond F. Simon, Marvin E. Aspen, Stuart Sikevitz, Chicago, Ill., for appellees.

Before HASTINGS, Senior Circuit Judge, SWYGERT and CUMMINGS, Circuit Judges.

SWYGERT, Circuit Judge.

This is an appeal from the district court's dismissal on its own motion of the plaintiffs' complaint which was brought under 42 U.S.C. § 1983. The complaint was filed Wednesday, August 28, 1968, during the middle of the week of the Democratic National Convention which was held in Chicago. The plaintiffs are news photographers who covered the Convention and attendant street activities during that week. The suit is a class action on behalf of the plaintiffs and all other members of the press similarly situated. Defendants are the City of Chicago, the Chicago Superintendent of Police, James B. Conlisk, Jr., and certain police officers of the Chicago Police Department whose identities are not known because of their alleged refusal to identify themselves and deliberate concealment of their identity resulting from the removal of their badges. The plaintiffs seek a permanent injunction against the defendants which would prevent them from "interfering with plaintiffs' constitutional right to gather and report news, and to photograph news events" and an order directing Police Superintendent Conlisk "to take appropriate action, including the issuance of proper orders, rules, regulations and instructions to the officers of the Chicago Police Department to insure the complete cessation of threats, force, or intimidation against plaintiffs."

When we are presented with an appeal from the dismissal of a complaint for lack of jurisdiction and failure to state a claim, the scope of our inquiry is limited to the complaint and the accompanying affidavits and exhibits. Contrary to the defendants' claim, the affidavits and exhibits attached to the complaint are a part thereof for all purposes. Fed.R. Civ.P. 10(c); Fisher Iron & Steel v. Elgin, J. & E. Ry. Co., 101 F.2d 373 (7th Cir. 1939). The district court's disclaimer of jurisdiction in this section 1983 case was in error. The Judicial Code, 28 U.S.C. § 1343(3), grants to the district courts original jurisdiction in civil actions commenced "to redress the deprivation, under color of any State law, statute, ordinance * * * of any right, privilege or immunity secured by the Constitution * * *." See also Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Note, THE FEDERAL INJUNCTION AS A REMEDY FOR UNCONSTITUTIONAL POLICE CONDUCT, 78 Yale L.J. 143 (1968).

Viewing the plaintiffs' allegations in a light most favorable to them and construing the pleadings so as to do substantial justice as required by Fed.R.Civ.P. 8(f), we are of the view that the complaint states a claim under section 1983 upon which relief can be granted. This is a suit for equitable relief only and it is apparent from the literal wording of section 1983 that injunctive relief is a proper remedy if the alleged unconstitutional deprivation of rights is established. See Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961). Under section 1983, equitable relief is appropriate in a situation where governmental officials have notice of the unconstitutional conduct of their subordinates and fail to prevent a recurrence of such misconduct. Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). From a legal standpoint, it makes no difference whether the plaintiffs' constitutional rights are violated as a result of police behavior which is the product of the active encouragement and direction of their superiors or as a result of the superiors' mere acquiescence in such behavior. In either situation, if the...

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