Yumich v. Cotter

• Decision Date: 29 November 1971
• Docket Number: No. 18397.,18397.
• Citation: 452 F.2d 59
• Parties: George S. YUMICH and Philip Steven Shear, by his father and next friend, Dr. Sidney Shear, Plaintiffs-Appellants, v. John E. COTTER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

452 F.2d 59 (1971)

George S. YUMICH and Philip Steven Shear, by his father and next friend, Dr. Sidney Shear, Plaintiffs-Appellants, v. John E. COTTER et al., Defendants-Appellees.

No. 18397.

United States Court of Appeals, Seventh Circuit.

October 13, 1971.

Rehearing Denied November 29, 1971.

Richard F. Watt, Chicago, Ill., for plaintiffs-appellants.

Peter Fitzpatrick, Chicago, Ill., for defendants-appellees.

Before SWYGERT, Chief Judge, and FAIRCHILD and PELL, Circuit Judges.

FAIRCHILD, Circuit Judge.

This action concerns events which occurred on the fifteenth floor of the Conrad Hilton Hotel in Chicago just after the close of the 1968 Democratic National Convention. Senator Eugene McCarthy, of Minnesota, had sought the nomination for President, and the fifteenth floor was one of two assigned to his campaign committee. The convention closed Thursday evening, August 29. A number of campaign workers remained in the McCarthy headquarters area on the fifteenth floor into the early morning hours of August 30. About 5 a. m., apparently at the request of hotel employees, fifteen or more city police officers cleared the fifteenth floor and required the occupants to take elevators down to the main lobby. The two plaintiffs, George Yumich and Philip Shear, claim that police officers struck and injured them wilfully and without cause during the eviction.

Yumich is a college textbook editor for a publishing company in New York. In the summer of 1968, he was at first a volunteer worker for McCarthy and later a compensated advance press aide. Shear, who brought suit by his father, was a high school student in California, aged 16, and a volunteer worker, beginning in January, 1968. During the convention he had the assignment of checking the credentials of persons coming to the 15th floor.

The defendants were fifteen Chicago police officers, two hotel employees, the city of Chicago, and Hilton Hotels Corporation.

Count I of the complaint was a civil rights claim, based on 42 U.S.C. § 1983, and directed at all defendants. Count III was a claim under Illinois law against all defendants, in substance for assault. Count V was directed at the hotel and its employees and was a state law claim that they violated duties as innkeepers to guests and licensees. Jurisdiction as to Counts III and V was based on diversity. Other counts were withdrawn.

The district court dismissed Count I against the city because it is a municipal corporation. Plaintiffs argue that this was error.

At the end of plaintiffs' case in chief, no individual defendant had been identified as an assailant. The district court dismissed all counts against individual defendants and dismissed Count I entirely. The jury returned a verdict on Counts III and V in favor of both defendants. Plaintiffs have appealed, but seek reversal as to the city alone.

The first question argued by plaintiffs is whether the district court properly dismissed the civil rights claim for damages against the city. It is not clear, under the circumstances, how a reversal of this ruling would improve their position. If the allegation of unlawful acts of the police officers could give rise to a § 1983 claim against the city, the verdict on the state law tort claim issues established that in fact the police officers' acts were not unlawful. If the verdict be reversed for error, we see no reason why the existence of a civil rights claim against the city would give plaintiffs any advantage at a new trial. Moreover, in the state law tort claim, plaintiffs have the advantage of being able to rely on respondeat superior.

In any event, in Monroe v. Pape (1961), 365 U.S. 167, 192, 81 S.Ct. 473, 5 L.Ed.2d 492, the Supreme Court held that a similar type of complaint against the city was properly dismissed, saying that Congress did not intend the word "person" subjected to liability by 42 U. S.C. § 1983 to include a municipality. Whatever may be the rationale for joining municipalities in § 1983 suits for injunction or declaratory judgment, usually along with individual officers and board members,¹ we consider that Monroe conclusively established that a city was not made liable for damages by § 1983.

Plaintiffs point out that under present Illinois law a "city is not immune from liability arising from tortious acts of police officers in the scope of their employment,"² and that in civil rights cases 42 U.S.C. § 1988 requires federal courts to apply state law in the trial and disposition of the case if federal laws are not adapted to the object or do not furnish suitable remedies.

Plaintiffs have called to our attention the recent decision of Carter v. Carlson, 447 F.2d 358, p. 369 (July 23, 1971, No. 23,225) holding, as one of several reasons why the District of Columbia might be liable under § 1983, that Monroe "held only that § 1983 does not authorize a suit for damages against a municipality which has been clothed in immunity by its parent state." With all respect, however, we read Monroe as a binding statutory construction, not dependent upon state law immunity, and not related to a deficiency in federal remedies, but establishing that § 1983 does not impose liability for damages upon a city.^2a

Plaintiffs seek a new trial of Count III, the tort claim, against the city on account of the admission of a particular line of testimony and the court's refusal to give a requested missing witness instruction. Consideration of these arguments requires a review of the facts.

There were conflicts in testimony on some points. Mindful that the evidence is to be viewed in the light most favorable to supporting the verdict, and thus in this case to the defendants, we summarize the facts as follows:

The alleged assaults occurred in the elevator lobby at the center of the 15th floor of the hotel. Background events occurred in Room 1506A and the corridors connecting that room with the elevator lobby. There is testimony concerning eviction of occupants of two other rooms.

Room 1506A and connecting Room 1505A have three windows facing east onto Michigan Avenue. The rooms are at the end of an east-west corridor about 50-60 feet long. A north-south corridor intersects the east-west corridor at its west end. The north-south corridor leads into the east end of the elevator lobby about 20 feet south of the intersection. The dimensions of the elevator lobby are about 45 feet east to west and 25 feet north to south.

A party where a considerable quantity of beer and liquor was consumed took place in 1506A. It was in progress at 1:30 a. m. and continued until terminated by the hotel management and police about 5 a. m. People threw beer cans, ash trays, and other objects out of the window from time to time. These objects fell to the sidewalk just north of the hotel entrance. Members of the Illinois National Guard were stationed along the east side of the hotel because of conditions in Chicago at that time. Officers were concerned about danger from the falling articles and, with the help of two hotel employees, identified Room 1506A as the source.

About 5 a. m., after a conference between hotel employees and police officers, defendant Anderson, a hotel employee, and defendant Gilbride, a police lieutenant, went to the 15th floor, accompanied by two plain clothes policemen, one or two uniformed policemen, and another hotel employee. They went to Room 1506A and talked with the people there. At the time there were a number of people, 25 or more, in the elevator lobby and corridors, and about 20 in 1506A. The door to 1506A was open and there was evidence that people came and went and that there was drinking and other social activity among people in the corridors.

After a message was sent down to defendant Matthews, night manager of the hotel, instructions came back to send any registered guests to their rooms and all others to the main lobby. Other groups of police officers and four National Guardsmen came up. Fifteen to 20 police officers were on the 15th floor.

Anderson told the people in 1506A they must leave. Although at first several argued and refused, there was no physical resistance and all left to go to the elevator lobby. The police told all the people to take elevators down to the main lobby. Some went quietly and some argued that they should be allowed to go to the 23rd floor where Senator McCarthy and other campaign workers were. Three exhorted others to go up and not down. There was testimony that some unidentified individuals resisted efforts of the police to get them on elevators. None of this testimony related to any physical resistance offered by plaintiff Shear, and, with one possible exception, none related to physical resistance by plaintiff Yumich. Defense witnesses indicated generally that the police were patient and used only minimal force when force was used.

There was considerable testimony about an attempt by John Warren, one of the campaign workers, to strike police officer Eraci with a table. Eraci defended himself and temporarily disabled Warren by a blow on the head with a baton. John Warren had originally been a plaintiff in this action, but had withdrawn before trial. The Warren incident occurred in the northeast portion of the elevator lobby. Detective Nolan, in plain clothes, had been standing near the southeast corner of the elevator lobby. He went toward Eraci, to aid him, but was sprayed in the face with an eye irritant. After first aid, he left the scene. No witness claimed to have observed the person who sprayed Nolan. One or more officers sprayed one or more of the campaign workers with mace.

The alleged assault on plaintiff Yumich occurred a split second before the Warren incident, and Nolan was the only defense witness who gave any testimony which could have been related to the Yumich incident.

Yumich had been in 1506A while Gilbride was there. He testified that after he went to the elevator lobby, he asked a police officer to allow him to go to the 23rd floor;...