Petition — Mitchell v. Beard

In the

Supreme Court of the Gnited States

ROY MARTIN MITCHELL,

Petitioner,

vs.

ELOISE BEARD, as Administratrix

for the Estate of Jeff Beard,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Epwarp L. Foore

Grecozy A. ADAMSKI

Geratp C. Peterson

Davin L. Lex

One First National Plaza

Chicago, Illinois 60603

Attorneys for Petitioner,

Roy Martin Mitchell.

Of Counsel:

Wryston & Srrawn

One First National Plaza

Suite 5000

Chicago, Illinois 60603

The Scheffer Press, Inc.—(312) 263-6850

TABLE OF CONTENTS

PAGE

Ue OE II iciiccccstentithindencntcaintnstiippeantenitonnnaiiniiite i

ID * cinidenailictiebasiinhnctstesitintecsnabion sciadashiitoaiiidiauihinainatendiiion 1

Opinions Below and Jurisdiction ...........ccceeseeeesees ones 1

I: BIN | ccchiiscecndiccncisidicsincheliiseniacipiiiacstiocntipaiacnioctions 2

I i ied aehantntanabeninatiiainiaietnaient 4

RE GR Te I i cicieciassqueninoegeniensniapeiomeneenentinions q

Reasons for I I TIO ciiciicaiinmninncnneanlacianipienna 8

1. The Principles Established In Bivens Demand A

Uniform Application Of Federal Law .................... 9

2. The Basis Upon Which The Court Concluded That

The Illinois “Catch All” Statute Of. Limitations

Governed Bivens Actions Is In Conflict With The

Gar TE GENIE cepcttcestcinimensesisiinstentinissinsctete 14

SD ©: ceiccocndiiiierintbbiisanicaneniniiteiatibitesepstinhiillinideanimemit 20

SI BD cisitsicscseinssciisesiblinsasipeeccitiinineinimnniilindiaitdeemetiniien la

ITT, Ge Geiidiciiiiicnstidianaiticsiesnididepniensinniblaadanigeeininiagmantiiatin 6a

SETI A> scstussdudarrssislitesinbehtindebniietieaitigiiapeintieieneiaaeeitasiagioke 22a

SII FP snstirtstccenissicaninttnanenpinaeanaeemneeen 26a

SIE Tb icttidptciiecatenecitsnsittnttininietidctaniatinensiniaauinapeaensnenies enh 32a

TABLE OF AUTHORITIES

a. Cases

Almond v. Kent, 459 F.2d 200 (4th Cir. 1972) ....... ao.

Baker v. F&F Investment Co., 420 F.2d 1191 (7th Cir.

1970), cert. dented, 400 U.S. 821 (1970) ......ceeeees 17

Baker v. F&F Investment Co., 489 F.2d 829 (7th Cir.

REE cies iatiessacale biacalbdlitiieitictaaesddlibeasiaipiiiinsitdhiieliaiaeh sitadicaracie 17

Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977) ........

vortidaidinneiiigialbaitvsianataiabiei cain tneslilias latina las tenet 2, 11, 15, 18

ii

Bennett v. Campbell, 564 F.2d 329 (9th Cir. 1977) ...... 10

Bivens v. Six Unknown Federal Narcotics Agents, 403

U.S. 388 (1971) .... 2, 3,6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20

Byars v. United States, 273 U.S. 28 (1927) -...ecccssessssseee 9

Chevron Oil v. Huson, 404 U.S. 97 (1971) ....ccccccececeseeee 9

Clearfield Trust Co. v. United States, 318 U.S. 363

CHE cccercesciansiciectnncighnitientzciniinnaininaeaniens 8, 9, 10, 12, 14

Crosswhite v. Brown, 424 F.2d 495 n. 2 (10th Cir. 1970) 19

Dellums v. Powell, 23 FR Serv 2d 1368 (D.C. Cir.

DTD ccsccutinicpuncsiisencitestaierichacrittsaiensliiiniaaaibanaiiibiapiiaiaianiavabtides 10

Gambino v. United States, 275 U.S. 310 (1927) ............ 9

Gordon v. Garrison, 77 F.Supp. 477 (E.D. Til. 1948) .... 18

Hill v. Trustees of Indiana University, 537 F.2d 248

CRs. Cle, TTI cencccessenneesssininistntninieitinsiniiinintiation 18

Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972) ............ 19

Johnson v. Railway Express Company, 421 U.S. 454

CERIFED . ccmrisonserscieaninineiateennasenncensseiateninnaiaaaiidiilnialirtibiines 15

Jones v. Jones, 410 F.2d 365 (7th Cir. 1969) cert. den.

SBE UB. 1013 (1GTD) ..crercccccssocsrssssscscccsecssesccecsovsseses 7, 16,17

Ka-Haar, Inc. v. Huck, 345 F.Supp. 54 (E.D. Wis.

TD cncensestorntisiinciitapinnsiranitintamannttinininnsiaiisieaintns 18

Madison v. Wood, 410 F.2d 564 (6th Cir. 1969) ........ 19

Margoles v. Ross, 67 FRD 666 (W.D. Wis. 1975) ........ 18

Monroe v. Pape, 365 U.S. 167 (19638) .......... ee 9, 15,17

O’Sullivan v. Felix, 233 U.S. 318 (1914) .... 8,14, 15, 17, 19

Peterson v. Fink, 515 F.2d 815 (8th Cir. 1975). ........ 19

Reagen v. Sullivan, 557 #.2d 300 (2d Cir. 1977) .. 10, 11,19

Richards v. United States, 369 U.S. 1 (1962) ............ 13

Robertson v. Weqmann, No. 77-178 (Dee. 5, 1977) .... 8,9

PEP EOP Penn,

ili

PAGE

Runyon v. McCrary, 427 U.S. 160 (1975) ............ &, 13,15

Shaw v. Garrison, 545 F.2d 980 (5th Cir. 1977) cert.

BRFSS IE EES SN EN ca RES 9

Shaw v. McCorkle, 537 F.2d 1289 (5th Cir. 1976)

State Marine Lines, Inc. v. Schultz, 498 F.2d 1146

aa SUID: cachiisteinieanipsciniatnbie nitiaiiiitedaiaihindaa 10

United States v. Robinson, 503 F.2d 208 (7th Cir.

UN irtasesecianalieieecaaisihiUR adit Ainieiahlacattininansdibistntt innit 4,8

Weeks v. United States, 232 U.S. 314 (1914) ..0.0000..... 9

Zwerbon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) .... 10

b. SratTures

I a 4

a 2

8 ORES Ss ie ee 2

I 2

ESSE OIL RT RT COR OR 2

| 8 ARE ech 12

a, SL a 3, 4

SRE RN A ae 2

INSTT Ra ME 3, 4, 13

i 3, 4,13

I a 2, 4, 11, 16, 19

8 ESR UR en 14

I Settee ee 3, 4, 13, 14

aha 3,4

ee 3, 4,7

a Ae... 3, 4, 6, 16

es ns a 3, 4,7

IN THE

SUPREME COURT OF THE UNITED STATES

No.

ee

ROY MARTIN MITCHELL,

Petitioner,

vs.

ELOISE BEARD, as Administratrix

for the Estate of Jeff Beard,

—

—

—

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

STATEMENT

Petitioner, Roy Martin Mitchell (“Mitchell”), respect-

fully prays that a Writ of Certiorari be issued to review

the judgment of the United States Court of Appeals for

the Seventh Circuit (Bauer, C.J.), entered on September

28, 1977, reversing a judgment of the United States Dis-

trict Court for the Northern District of Illinois, Eastern

Division (Hoffman, J.) entered on May 27, 1976.

OPINIONS BELOW AND JURISDICTION

The District Court’s opinion granting petitioner-defen-

dant’s motion to dismiss respondent-plaintiff’s 1871 Civil

a

Rights Act claim (42 U.S.C. §1983) and Bivens' claim,

75 C 3204, is unreported and is attached hereto as Ap-

pendix A. The opinion of the Court of Appeals reversing

the District Court’s decision on both claims is reported

at 563 F.2d 331 (1977) and is attached hereto as Appen-

dix B. The judgment below was entered on September

28, 1977.

This Petition is filed within the 60 day time limit set

forth in the extension to file a petition for a writ of

certiorari granted by Mr. Justice Stevens on December

16, 1977 pursuant to 28 U.S.C. §2101/c).

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1). The jurisdiction of the Court of Appeals was

invoked under 28 U.S.C. §1291 and the District Court’s

jurisdiction was invoked pursuant to 28 U.S.C. §§1331,

1343.

QUESTIONS PRESENTED

The fundamental and compelling question raised by

the judgment below is whether the alleged violation of

constitutional rights by a federal agent is of such para-

mount national concern that a uniform statute of limita-

tions and right of survivorship should be created as a

matter of federal common law. Analytically, the separate

issues raised as questions are:

1, Whether the Court of Appeals erred in not estab-

lishing a uniform federal statute of limitations, as a

matter of federal common law, to apply to claims

in which money damages are sought for the violation. of

constitutional rights by a federal agent where: (a) un-

* Bivens v. Six Unknown Federal Narcotics Agents, 403

U.S, 388 (1971) (hereinafter Bivens).

der the Rules of Decision Act (28 U.S.C. §1652), the

Court could have applied the statute of limitations pro-

vided in the Federal Tort Claims Act (28 U.S.C. §§2401,

2680(h)); and (b) under the 1871 Civil Rights Act (42

U.S.C. §1988), the Court could have applied the statute

of limitations provided in the Federai Tort Claims Act.

2. Whether the Court of Appeals erred in not adopting

a uniform federal right of survival, as a matter of federal

common law, to foster the application of the principles

set forth in Bivens where: (a) under the Rules of Deci-

sion Act, the Court could have applied the survival

statute contained in the 1871 Civil Rights Act (42 U.S.C.

§1986) ; and (b) under the 1871 Civil Rights Act (42 U.8.C.

§1988), the Court could have applied the survival statute.

3. Whether the Court of Appeals erroneously applied

the Illinois five-year statute of limitations (Ill. Rev. Stat.

ch. 83 §16) to a Bivens claim where: (a) Jeff Beard’s

beating and death occurred in Indiana; and (b) Illinois

would treat the cause of action as one for damages to the

person or for false imprisonment and apply its two-year

statute of limitations (Ill. Rev. Stat. ch. 83 $15).

4. Whether the Court of Appeals, in determining that

Tllinois survival statute (Ill. Rev. Stat. ch. 3 §339) ap-

plied, incorrectly characterized a Bivens action as an

action against officers for “misfeasance, malfeasance or

nonfeasance”,

pars a

STATUTES INVOLVED

The statutes involved in this case are

28 U.S.C. §1652

28 U.S.C. §2401

28 :U.S.C. §2680(h)

42 U.S.C. §1983

42 U.S.C. §1986

42 U.S.C. §1988

Ill. Rev. Stat. ch. 3 §339

Ill. Rev. Stat. ch. 83 §15

Tl. Rev. Stat. ch. 83 $16

and are fully set forth in Appendix C attached hereto.

STATEMENT OF THE CASE

This case is brought against Mitchell, Stanley Robinson

(“Robinson”), William O’Neal (“O’Neal”) and Certain

Officers of the Federal Bureau of Investigation whose true

identities are unknown by Respondent, Eloise Beard, as

Administrator for the Estate of Jeff Beard, the Deceased

(“Beard’s Estate”). The complaint, attached hereto as

Appendix D, alleges inter alia that petitioner, Mitchell,

and some or all of the other defendants, on May 17, 1972,

while acting in their individual and official capacities as-

saulted Jeff Beard (“Beard”) with a deadly weapon and

wed am thereby depriving him of his constitutional

rights.

Specifically, respondent contends that the Federal

Bureau of Investigation (“FBI”) was collecting intelli-

gence on certain members of the Chicago Police Depart-

* Most of the facts contained in respondent’ i

are taken from United States v. Roblacon, 503 F 20 206

§ 7th Cir. 1974), which affirmed Robinson’s conviction for

epriving Beard of his civil rights under 18 U.S.C. §241.

ment, including defendant Robinson in connection with a

series of unsolved murders of certain respectable citizens

of Chicago’s black community. Mitchell, who is an FBI

agent along with and Certain Officers of the Federal Bu-

reau of Investigation whose true identities are unknown

to respondent (“Certain Officers of the FBI”), are alleged

to have employed O’Neal to act as an informant anc to

provoke and participate in acts of violence being directed

by Robinson in order to gather intelligence information.

Beard’s Estate alleges that, while O’Neal was acting

as an FBI informant, he conspired with Robinson to

murder Beard, a small-time dope addict and drug pusher,

on Chicago’s West Side pursuant to a “contract” between

Robinson and William Taylor, a West Side drug pusher.

It is alleged that on the night of May 17, 1972, Robin-

son, in the company of O’Neal, seized Beard on the pre-

text of arresting him in Chicago, Illinois and transported

him to Indiana. While in the car, Robinson removed

Beard’s handcuffs and informed Beard that he was not

under arrest, but rather Robinson wanted him to sell

narcotics for him. Beard agreed to this proposition and

began discussing the “street” prices of various drugs with

Robinson.

At some time during this evening O’Neal unsuccessfully

attempted to call Mitchell to advise him concerning these

developments. Thereafter, O’Neal contiaued with Robin-

son and Beard to Indiana. When the parties reached a

secluded area in Indiana, Robinson induced Beard to step

out of the car to talk. When Beard got out of the car,

Robinson shot at him, but missed. Robinson then chased

Beard and when he caught him, shot, clubbed, and stabbed

him to death. All these events occurred outside O'Neal’s

presence,

~~

The next day O’Neal reported this incident to Mitchell.

A search for Beard’s body was promptly commenced.

While this investigation was continuing, Robinson in-

formed O’Neal of a contract to kill one “Jeepers”. O’Neal

reported this situation to Mitchell and Mitchell and O’Neal

agreed that “Jeepers” should be taken into protective

custody and that O’Neal would fake “Jeepers” murder.*

At an eight-week trial by jury before the Honorable

Philip W. Tone, Robinson was found guilty beyond a

reasonable doubt of these crimes and was sentenced to

life imprisonment.

According to Beard’s Estate, the failure of Mitchell and

O’Neal to prevent Beard’s murder by Robinson constitutes

a “conspiracy” to deprive Beard of his constitv+ional

rights. Thus, on September 25, 1975, more than three

years after Beard’s death, his Estate brought the instant

suit seeking $250,000 in compensatory damages and

$500,000 in punitive damages for the injuries Beard suf-

fered as a result of this purported “conspiracy”.

On Mitchell’s motion, the District Court dismissed re-

spondent’s complaint, holding that a Bivens type action

survived under Illinois law only insofar as it sought dam-

ages for the physical injuries that Beard suffered* and

that the claims for physical injury were barred by Illinois’

two-year statute of limitations (Ill. Rev. Stat. ch. 83 § 15).

Beard’s Estate appealed this judgment to the Court of

Appeals contending, inter alia, that the federal action

for conspiracy to deprive Beard of his constitutional

* Mitchell was also sued by “Jeepers” for violating his

constitutional rights by taking him into protective custody.

* All such injuries were sustained in Indiana,

a

rights survived his death either under Illinois law or

federal common law and that the applicable statute of

limitations is Illinois’ five-year “catch-all” period of limi-

tations (Ill. Rev. Stat. ch. 83 4 16).

The Court of Appeals for the Seventh Circuit reversed

the decision of the District Court in its entirety. As to

the issue of survivorship, the Court held, as a matter of

federal law, that respondent’s action survives under the

Illinois law which allows an action to survive “against

officers for misfeasance, malfeasance or nonfeasance”.

(Ill. Rev. Stat. ch. 3 § 339). In reversing the District

Court’s holding that the claims were barred by

Illinois two-year statute of limitations, the Court of Ap-

peals overruled its decision in Jones v. Jones, 410 F.2d

365 (7th Cir. 1969), cert. den. 396 U.S. 1013 (1970), which

the District Court relied on for the proposition that a

federal court was to apply the statute of limitations most

analogous to the underlying state claim. The Court held,

instead, that the appropriate period of limitations for a

Bivens action is the Illinois five-year “catch-all” statute

of limitations.

_—

REASONS FOR GRANTING THE WRIT

Certiorari should be granted not merely because

the Court of Appeals erred on the application of

Illinois law, but, more importantly, because the Seventh

Circuit’s judgment directly conflicts with the principles

established by this Court in Clearfield Trust Co. v. United

States, 318 U.S. 363 (1943); Bivens v. Six Unknown Fed-

eral Narcotics Agents, 403 U.S. 388 (1971); O’Sullivan v.

Feliz, 233 U.S. 318 (1914); and Runyon v. McCrary, 427

U.S. 160 (1975).* Unless the judgment of the Seventh

Circuit is reversed, this Court will have condemned every

federal agent to the vagaries of state law in determining

when a constitutional claim may be raised and whether

such an action survives despite the fact that the pur-

ported claim could be based on conduct which may have

occurred anywhere in the world.

Moreover, the instant claim is based upon the Robinson

criminal trial. That trial, which lasted eight weeks and

consumed thousands of pages of testimony, was tried

before Judge Tone, a respected member of the federal

bench now serving on the Seventh Cireuit Court of Ap-

peals. The instant case seeks to rehash the issues raised

in Robinson which resulted in the conviction of a cop-

turned-killer. In light of the Seventh Circuit’s manifest

error in not barring respondent’s stale claims, this Court

should act decisively to prevent a protracted retrial of

Robinson under the guise of an untimely dled civil suit.

*The Court has granted certiorari in Robertson

v. Wegmann, No. 77-178 (December 5, 1977) to determine

whether federal common law should be applied to ascer-

tain the survival of a civil rights action.

welbiias

1. The Principles Established In Bivens Demand A

Uniform Application Of Federal Law.

In Bivens, this Court created, as a matter of federal

common law, a right to damages for an individual who

suffers injury as a result of Fourth Amendment viola-

tions’ committed by a federal agent acting under color

of his authority. 403 U.S. at 389. In creating this right,

the Court made it clear that constitutional violations

committed by a federal agent are matters of national,

not local, concern. 403 U.S. at 392, 394. Consequently,

the remedy provided by Bivens was to be governed by

uniform rules of federal law. Thus, this Court created a

claim which is in no way dependent upon the laws of the

State where the injury happened to occur. 403 U.S. at 409

(Harlan, J., concurring).

Bivens is consistent with well-established law that

Fourth Amendment rights merit such paramount national

concern that state laws will not be determinative either

in ascertaining their violation or in fashioning a remedy.

Weeks v. United States, 232 U.S. 314 (1914); Byars v.

United States, 273 U.S. 28 (1927); Gambino v. United

States, 275 U.S. 310 (1927); Momroe v. Pape, 365 U.S.

167 (1963). And where that federal concern is so great,

federal courts must fashion uniform rules of federal law

to govern the appropriate remedy. Clearfield Trust

Co.; Shaw v. Garrison, 545 F.2d 980 (5th Cir. 1977)

cert. granted, sub nom Robertson v. Wegmann, No. 77-

178 (December 5, 1977); c.f. Chevron Oil v. Huson, 404

US. 97 (1971).

*The instant Complaint also alleges violations of the

Fifth, Eighth, Ninth, and Fourteenth Amendments.

= =

In Clearfield Trust Co., the Court noted:

In our choice of the applicable federal rule we have

occasionally selected state law [Citation omitted]. But

reasons which make state law at times the appropriate

federal rule are sitigularly inappropriate here. The

issuance of commercial paper by the United States

is on a vast scale and transactions in that paper from

issuance to payment will commonly occur in several

states. The application of state law, even without

the conflict of laws rules of the forum would subject

the rights and duties of the United States to excep-

tional uncertainty. It would lead to great diversity

in results by making identical transactions subject

to the vagaries of the laws of the several states. The

desirability of a uniform rule is plain.

318 U.S. at 367.

In the instant case, state law is likewise inappropriate

for fashioning the rules under which a Bivens action is

to be governed. Already, Bivens actions have been brought

against the Attorney General (Zweibon v. Mitchell, 516

F.2d 594 (D.C. Cir. 1975)) the Secretary of the Treasury

(State Marine Lines, Inc. v. Schultz, 498 F.2d 1146 (4th

Cir. 1974)), customs agents and FBI agents (Reagen v.

Sullivan, 557 F.2d 300 (2d Cir. 1977)), a United States

Marshall (Bennett v. Campbell, 564 F.2d 329 (9th Cir.

1977)), and the District of Columbia Police, (Dellums

v. Powell, 23 FR Serv 2d 1368 (D.C. Cir. 1977)). No doubt

such suits would be maintainable against Internal Rev-

enue a,ents, Occupational Health and Safety Act inspec-

tors, or any federal officer with the power or authority

to effect an investigation or arrest. The duties of such

officers are national and, in some instances, international

in seope. In the course of an investigation or arrest, fed-

eral officers will invariably cross state lines. The need

for uniform federal rules is obvious.

— on

However, the two Courts of Appeals which have con-

sidered the issue of the timeliness of a Bivens action have

reached divergent results. In the instant case, the Seventh

Cireuit held that the appropriate period of limitations

is Illinois’ five-year “catch-all” statute. In Reagan v. Sul-

livan, the Second Circuit held that the appropriate period

of limitations was either New York’s three-year statute

of limitations for an action to recover on a liability, pen-

alty, or forfeiture or its six-year period of limitations

for an action for which no statute was otherwise pro-

vided. 557 F.2d at 307.

Moreover, the Court below buttressed its reasoning

that Illinois’ five-year period applied because it held that

five-year period applicable to § 1983 on that basis that:

A contrary result could lead to the incongrous ap-

plication of inconsistent limitations periods to dif-

ferent members of a single conspiracy, based solely

on whether an officer alleged to have committed the

constitutional violation was employed by the state or

federal government.

563 F.2d at 338.

It is, at least, equally incongrous to have federal offi-

cials, whose duties often cross state lines, governed by

a state limitation on liability for their actions, when that

state’s law can neither authorize their action or limit the

extent to which their authority may be exercised. Bivens,

403 U.S. at 395.

But even if the Court below correctly based its opinion

on the assumption that 41983 actions and Bivens actions

should be governed by the same state statute of limita-

tions, the result of this holding—if applied by all the Cir-

cuits—would result in a patchwork of varying periods of

am 19

limitation. The instant case vividly demonstrates this.

As noted earlier, because Beard was killed in Indiana,

this same action for conspiracy could have been brought

in the Northern District of Indiana. Following the rea-

soning of the Seventh Circuit, Indiana law on the right

of survival and the period of limitations would apply.

Henee, through federal forum-shopping, a plaintiff would

be abie to choose the best statute of limitations and sur-

vival statute. See 28 U.S.C. 41391(b). Obviously, this was

not the intention of the Court when Justice Harlan noted:

It seems to be entirely proper that these injuries be

compensable according to uniform rules of federal]

law, especially in light of the very large element of

federal law which must in any event control the scope

of official defenses to liability [Citations omitted].

Certainly, there is very little to be gained from the

standpoint of federalism by preserving different rules

of liability for ‘federal officers dependent on the State

when the injury occurs.

403 U.S. at 409 (Harlan, J., concurring).

Given the fact that uniform rules of federal law must

be applied to Bivens actions to prevent federal forum

shopping for the best statute of limitations and right of

survivorship, the question becomes on what basis should

federal common law be established. As the Court noted

in Clearfield Trust, 318 U.S. at 367, the fashioning of fed-

eral rules applicable to federal questions should be based

upon reference to federal law. In this instance, the most

convenient sources of reference for fashioning a uniform

period of limitations and right of survival] may be found

*See Appendix E attached hereto,

am 43 aw

in the Federal Tort Claims Act (28 U.S.C. §§ 2401,

2680(h)) and the 1871 Civil Rights Act (42 U.S.C. § 1986).

As the latest statement of Congressional policy, the

Federal Tort Claim Act provides that the United States

will be liable in tort for Fourth Amendment violations

committed by federal investigative or law enforcement

officers provided that an action for damages is brought

within two years. Although this Act applies to violations

which occur after its enactment, it provides a sufficient

basis for applying the two-year statute to all Bivens

claims for several reasons:

(a) it states a uniform federal statute of limitations

to be applied to Bivens actions wherever they arise;

(b) if it is not adopted, then following the reasoning

of the court below, a federal agent would be liable in

Illinois for five years, while the government whose orders

he was ostensibly carrying out would be liable for only

two years; and

(c) the government would be liable in tort in accord-

ance with the law of the state in which the injury 0e-

curred including its choice-of-law rules (Richards v. United

States, 369 U.S. 1 (1962)) while the agent would be liable

in accordance with the law of the forum state (see, ¢.9.,

Runyon v. McCrary, 427 U.S. 160 (1975)).

Likewise, Congress has spoken to the issue of whether

a claim for violation of constitutional rights may survive

the death of the victim. The 1871 Civil Rights Act pro-

vides:

If the death of any party be caused by any such

wrongful act and neglect, the legal representatives of

the deceased shall have action therefore, and may re-

cover not exceeding $5,000.00 damages therein for the

—= 14

benefit of the widow of the deceased, if there be one,

and if there be no widow, then for the benefit of the

next of kin of the deceased. But no action under the

provisions of this section shall be sustained which

is not commenced within one year after the cause of

action has acerued.

§ 42 U.S.C. 1986.

Although this section expressly applies only to § 1985

of the Civil Rights Act, this Court, in O’Sullivan v. Feliz,

233 U.S. 318, 323, 324 (1914), indicated that, wherever

death results as a consequence of a violation of constitu-

tional rights, this statute would apply. This interpretation

is consistent with the obvious intent of Congress, for at

the time the Ku Klux Klan Act was passed, few, if any,

states provided for the survival of a cause of action or

for wrongful death actions. Thus, Congress decided that

a claim for violation of constitutional rights where death

is the result should survive only to the extent that such

damages do not exceed $5,000 and that it survives for

only one year.

Under the Rule of Decision Act and Clearfield Trust

Co., this Court should adopt these laws as federal common

law because they are the latest statement of the legisla-

ture as to the applicable statute of limitations and sur-

vival statute for causes of action for violaton of consti-

tutional rights.

2. The Basis Upon Which The Court Concluded That

The [Illinois “Catch All” Statute of Limitations

Governed Bivens Actions Is In Conflict With The

Holdings Of This Court.

In determining that Illinois’ “catch-all” statute of limi-

tations applied to Bivens actions, the Court below has de-

— =

parted not only from the holdings of this Court and the

other Circuits, but from its own decisions as well. Dis-

regarding the mandate of the Court in Monroe v. Pape,

365 U.S. at 187, that constitutional violations “should be

read against the background of tort liability that makes

a man responsible for the natural consequences of his

actions,” the lower Court held that a Bivens claim could

not be equated with a state tort claim, 563 F.2d at 338.

Therefore, reasoned the Court below, the only statute of

limitations which would be applicable is the “catch-all”

statute of limitations.

This reasoning ignores all relevant holdings of this

Court since O’Sullivan v. Feliz. In O’Sullivan, the Court

held that an action for damages brought under the 1871

Civil Rights Act is governed by the most appropriate state

period of limitations. In so holding, the Court necessarily

recognized the duty of the federal courts to look to the

underlying claim to determine the most applicable statute

of limitations. Monroe v. Pape, Johnson v. Railway Ex-

press Company, 421 U.S. 454 (1974), and Runyon v.

McCrary unequivocally support this fundamental propo-

sition.

In Runyon v. McCrary, this Court affirmed the applica-

tion of Virginia’s general tort statute of limitations to a

claim seeking to vindicate constitution rights and noted:

And whether the damages claim of the Gonzaleses be

properly characterized as involving “injured feelings”

. . . or the vindication of constitutional rights, .. .

there is no dispute that the damages was to their

persons...

427 U.S. at 182.

Likewise, the instant case is brought to recover damages

for injury to Beard’s person suffered as a result of his

=

arrest.’ Hence, assuming that the lower court was bound

to follow the analogous state period of limitations rather

than to establish a federal statute of limitations, the LIlli-

nois law most appropriate to this claim is the two-year

statute of limitations governing injuries to the person and

false imprisonment (Ill. Rev. Stat. Ch. 83 § 15).

Although this Court will not generally reject the judg-

ment of a Court of Appeals concerning which state stat-

ute of limitations is most appropriate, there are several

reasons why the Court should review the decision below:

(a) the Court’s decision is in conflict with its holding

in Jones v. Jones;

(b) the District Court and the Court of Appeals have

disagreed as to the interpretation of state law;

(c) the Circuits are split as to whether to apply the

“catch-all”, statutory, or the “underlying state

action” statute of limitations should apply to suits

seeking damages for constitutional violations.

In Jones v. Jones, the plaintiff brought suit under

§ 1983 alleging that his wife, her family, her lawyers, and

certain judges of the Illinois courts had combined to un-

constitutionally deprive him of his constitutional rights

and that as a result thereof, he was ordered to pay child

support, and committed to jail for contempt because of

his refusal to make payments. The Seventh Circuit noted

that because neither federal common law nor the federal

Civil Rights statute contained a statute of limitations,

“the applicable statutes of the forum state which governs

the closest analogous state action will control”, 410 F.2d

at 366, 367, and held:

"It is doubtful whether this claim seeks damages for

the beating and death of Beard because these were not

caused by one acting under color of law. Moreover, such a

claim would be governed by Indiana law.

aw 17

In considering the substance of the alleged injury and

not merely the name given to it by the parties, we

hold that the statute of limitations in Chapter 83,

Illinois Revised Statutes § 15 (§ 14 of the Limitations

Act) applies.

In Baker v. F&F Investment Co., 489 F.2d 829, 837 (7th

Cir. 1973) (Baker II) the Court followed the reasoning set

forth in Jones v. Jones when it explained the import of

its decision in Baker v. F&F Investment Co., 420 F.2d

1191 (7th Cir. 1970), cert. denied, 400 U.S. 821 (1970)

(Baker I) as follows:

Baker I held only that if no specific facts of a civil

rights suit bring it within some other statute of limi-

tations, the Ill. Rev. Stats. 1971, Ch. 83 § 16 applies.

But all the relevant elements of each lawsuit must be

considered before characterizing it for statute of limi-

tations purposes.

It should be noted, moreover, that the Baker II defen-

dants were federal officer and agencies.

In the instant case, which includes federal officers as

defendants, however, the Court below has decided, con-

trary to the holdings of Monroe v. Pape, O’Sullivan v.

Feliz, and its own decisions, that it will no longer con-

sider the relevant elements of a particular lawsuit to

determine the applicable statute of limitations. Such a

radical departure from the established law of this Court

and the Circuit demands immediate review.

In reversing the District Court’s opinion, the Court of

Appeals has not only overruled its holding applicable

to Illinois law, Jones v. Jones, and Baker Il, but

has also overturned the established law applied to cases

—_— Ss

brought in Indiana and Wisconsin involving constitutional

claims. See, ¢.g., Hill v. Trustees of Indiana University,

537 F.2d 248 (7th Cir. 1976) (Kunzig, J. concurring spe-

cifically); Ka-Haar Inc. v. Huck, 345 F.Supp. 54 (E.D.

Wis. 1972); Margoles v.. Ross, 67 F.R.D. 666 (W.D. Wis.

1975).

There can be little doubt that, in overturning 29 years

of well-founded decisional law (see, e.g., Gordon v. Garri-

son, 77 F.Supp. 477 (E.D. Ill. 1948)), the effect of the de-

cision below, will be the institution of heretofore stale

lawsuits.

In addition, the decision of the Court below is based

upon a fundamentally illogical reasoning process. In hold-

ing that the claim of Beard’s Estate survived as a matter

of federal law, the Court looked to the underlying state

claim and reasoned that the claim survived as an action

for misfeasance, malfeasance and nonfeasance. 563 F.2d

at 333. In holding that the “catch-all” statute of limita-

tions applied, however, the Court stated that “Bivens

claim for deprivation of constitutioned rights cannot be

equated with state tort claims.” 563 F.2d at 338.

Thus, district courts within the jurisdiction of the Sev-

enth Circuit are now placed in the analmous position of

looking to the underlying state cause of action to deter-

mine if a Bivens claim survives while, at the same time,

in applying a statute of limitations, holding that Bivens

actions are analagous to no state cause of action. Such

inherently contradictory reasoning requires immediate re-

view by this Court.

In addition to the conflict with the holdings of this

Court and the inherent inconsistency contained in the de-

—

cision of the Court of Appeals, there is a split among the

circuits as to whether the “catch-all” or the underlying

state action “period of limitations should apply to suits

alleging the violation of constitutional rights. Thus, the

Tenth Circuit, in Cr. 3swhite v. Brown, 424 F.2d 495, n.2

(10th Cir. 1970) appli.d Oklahoma’s two-year general

statute of limitations for an action for injury to the rights

of another not arising from one contract and not other-

wise enumerated.

In keeping with O’Sullivan v. Feliz, the Third, Fourth,

Fifth, Sixth and Eighth Cireuits apply the statutes o: limi-

tations most applicable to the underlying state cause of ac-

tion. Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972);

Almond v. Kent, 459 F.2d 200 (4th Cir. 1972); Shaw v.

McCorkle, 537 F.2d 1289 (5th Cir. 1976) ; Madison v. Wood,

410 F.2d 564 (6th Cir. 1969); Peterson v. Fink, 515 F.2d

815 (8th Cir. 1975). The Second Circuit, however, is not

clear as to whether the general statute of limitations on

this statute most analgous to the underling claim. [teagan

v. Sullivan.

While, from the standpoint of federalism, there might

be something to be gained by applying the various state

statutes of limitations to state officers in a suit brought

under § 1983, there is no reason for such a conflict to

exist in determining what statute of limitations should

apply to federal officers. 403 U.S. at 409 (Harlan, J., con-

curring). Indeed, as noted earlier, such a divergency can

only result in federal forum shopping.

— =

CONCLUSION

As this Court is well-aware, much litigation and litera-

ture—some responsible, some otherwise—have been re-

ported since Bivens was decided in 1971. In the instant

matter, this Court is confronted with a classic case calling

for prompt resolution. A reknowned FBI agent, who was

instrumental in bringing the killers of three civil rights

workers in Mississippi to justice, applied this same dedica-

tion to bring the suspected killer of six responsible black

citizens of Chicago before the bar of justice. In the course

of gathering information on Robinson, the cop-turned-

killer, Robinson seized a drug addict and pusher in the

presence of O’Neal, Mitchell’s contact.

More than three years later, Beard’s Estate sued, claim-

ing, under Bivens, that the man largely responsible for

convicting Robinson for the murder of Beard somehow

conspired with that murderer to deprive Beard of his

constitutional rights. The District Court applied estab-

lished law and dismissed this untimely and unwarranted

claim. The Seventh Circuit created new law and reversed.

In so doing, the principles established in Bivens have

become hazy. Thus Mitchell has been consigned by that

Court to defend his con’.t in a new uncertain and murky

area of the law.

Petitioner Mitchell respectfully submits that this Court

should grant his petition for writ of certiorari so that it

a= 9

may establish uniform federal law to be applied to such

actions.

Respectfully submitted,

Epwarp L. Foore

Grecory A. ADAMSKI

Geratp C. PreTerson

Davin L. Ler

One First National Plaza

Chicago, Illinois 60603

Attorneys for Petitioner,

Roy Martin Mitchell.

Of Counsel:

Winston & Strawn

One First National Plaza

Suite 5000

Chicago, Illinois 60603

_—

APPENDIX A

In Tue Unitep States Districr Court

Northern District of Illinois

Eastern Division

ELOISE BEARD, as Administratrix of the Estate of

JEFF BEARD, the Deceased,

Plaintiff,

vs.

STANLEY B. ROBINSON, WILLIAM M. O’NEAL, RAY

MARTIN MITCHELL, and Certain Officers of the Federal

Bureau of Investigation, whose true identities are un-

known to the plaintiff,

Defendants.

No. 75 C 3204

TRANSCRIPT OF PROCEEDINGS

had in the above-entitled cause before the Hon. Julius

J. Hoffman, one of the Judges of said Court, in his court-

room in the United States Courthouse, Chicago, Illinois,

on Thursday, May 27, 1976, at the hour of 10:00 o’clock

a.m.

Appearances :

Messrs. Sonnenschein, Carlin, Nath and Rosen-

thal

69 W. Washington Street

Chicago, Illinois 60602

By: Mr. Peter M. Weil,

appeared on behalf of the plaintiff;

Hon. Samuel K. Skinner

United States Attorney

219 South Dearborn Street

Chicago, Iliinois 60604

By: Mr. Arnold Kanter

Ms. A. M. Kwoka,

Assistant U. S. Attorneys,

appeared on behalf of some of the defen-

dants ;

wien

Messrs. Devoe, Shadur and Krupp

208 S. LaSalle Street

Chicago, Illinois 60604

By: Mr. Ronald Barliant,

appeared on behalf of the defendant,

Stanley B. Robinson.

The Clerk: 75 C 3204, Eloise Beard v. Stanley B.

Robinson, ruling on defendants Robinson and Mitchell to

dismiss the complaint.

The Court: Thank you for coming in. I have for ruling

here the motions of the defendants Robinson and Mit-

chell to dismiss the complaint.

This is an action under 42 U.S.C. Sections 1983 and

1985 by Eloise Beard in her capacity as administratrix

of the estate of Jeff Beard to redress the alleged deprava-

tion of the decedent’s constitutional rights. The plain-

tiff is seeking compensatory and puntative damages and

invokes the jurisdiction of this Court pursuant to 28

U.S.C. Sections 1331 and 1343.

Named as defendants are: Stanley B. Robinson, a

Chicago Police Officer; Roy Martin Mitchell, a Special

Agent of the Federal Bureau of Investigation; and Wil-

liam O’Neal, an alleged paid informant for the FBI.

According to the allegations in the complaint, the depra-

vation of the constitutional rights of plaintiff’s decedent

occurred during the course of an FBI investigation that

was intended to expose suspected corruption among mem-

bers of the Chicago Police Department, including defen-

dant Robinson.

The plaintiff contends that as part of that investigation,

the defendant Mitchell employed the defendant O’Neal,

a paid informer, to provoke and participate in criminal

acts being committed by Robinson and others. One such

incident is alleged to have occurred on or about May

17, 1972, when defendants Robinson and O’Neal, on the

pretext of making a lawful arrest, abducted Jeff Beard

and drove him from Chicago to Indiana where he was

=

clubbed and shot to death by Robinson. Plaintiff main-

tains that the acts which resulted in the death of Jeff

Beard constituted a conspiracy to interfere with, as well

as an actual depravation of, Jeff Beard’s constitutional

rights under the Fourth, Fifth, Eighth, Nineth and Four-

teenth Amendments.

The action is now before the Court on the motion of

the defendants Robinson and Mitchell to dismiss the com-

plaint for failure to state a claim upon which relief can

be granted. Among the grounds asserted in support of

the motions are that the plaintiff’s claim has in part

abated, and to the extent that it has not abated, is time

barred.

In determining whether the plaintiff’s claim has abated,

it has been held that ‘‘in a federal civil right’s action

where the person who has been deprived of his rights

has died that action survives for the benefit of the estate

if the applicable state law creates such a survival action.’’

Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974).

In pertinent part, the Illinois Survival Statute, Sec-

tion 3, Illinois Revised Statutes, Section 339 provides that

that ‘‘in addition to the actions which survive by the com-

mon law, the following also survive: actions to recover

damages for an injury to the person, except slander and

libel; and actions against officers for misfeasance, mal-

feasance or nonfeasance of themselves or their deputies.’’

Illinois law does not, however, provide for the survival

of actions for either conspiracy or the violation of a per-

son’s civil rights. Moreover, since police officers are not

‘‘officers’’ within the meaning of the statute, Kent v

Muscarello, 9 Ill.App.3d 738 (2nd Dist. 1973), the plain-

tiff’s claim survives only to the extent that the action

seeks to recover damages for physical injuries alleged

to have been suffered by Jeff Beard, Mattyasovsky v.

West Town Bus Co., 21 Ill.App.3d 46 (2nd Dist. 1974).

But such an action, although within the scope of the

Survival Statute, is nevertheless time barred under the

—

applicable Statute of Limitation; whereas, here neither

Federal Common Law nor the Civil Rights Act estab-

lish a time limit within which an action must be commenced

**the applicable statute of the forum state which governs

the closest analogous state action will controll.’’ Jones

v. Jones, 410 F.2d 365, 366 (7th Cir. 1969). Thus,

‘**eonsidering the substance of the alleged injury, and not

merely the name given to it by the parties” Jones v.

Jones, to which I have previously ailuded, at Page 367.

It is clear that the case at bar is governed by Chapter

83, Section 15 of the Illinois Revised Statutes, which pro-

vides that ‘‘action for damages for an injury to the per-

son shall be commenced within two years next after the

cause of action acecrued.’’ The complaint in the present

action having been filed on September 25, 1975, more than

two years after the incident in question is alleged to have

occurred is therefore untimely.

Furthermore, although plaintiff does not specifically

seek damages for the wrongful death of Jeff Beard, such

an action would also be untimely in view of the two-year

limitation period contained in Chapter 70, Section 2 of

the Illinois Revised Statutes. Evain v. Conlisk, 364 F.

Supp. 1188 (N.D. Il. 1973).

Accordingly, the motions of the defendants Robinson

and Mitchell to dismiss the complaint, Mr. Clerk, will be

allowed.

As to the remaining defendant William O’Neal, the

Court file contains the letter from one, Mr. Peter Weil, to

the Clerk of this Court dated September 24, 1975, in which

he stated that because of the lack of information regard-

ing O’Neal’s address summons was not being issued at

that time. Since there is nothing in the Court file or on

the docket sheet which indicates that a summons was sub-

sequently issued as to the defendant O’Neal, the claim will

be dismissed sua sponte as to the defendant William

O’Neal for want of prosecution without prejadice.

Mr. Kanter: Thank you, Judge.

Mr. Barliant: Thank you, your Honor.

—

In Tue Untrep Srates District Court

Northern District of Ilinois

Eastern Division

* * (Caption—No. 75 C 3204) * *

CERTIFICATE

I, Joan M. Unzicker, do hereby certify that the fore-

going is a true, accurate, and complete transcript of the

proceedings had in the above-entitled cause before the

Hon. Julius J. Hoffman, one of the Judges of said Court,

in his courtroom at Chicago, Illinois, on May 27, 1976.

/s/ Joan M. Unzicker

Official Court Reporter

United States District Court

Northern District of Illinois

oe

APPENDIX B

In THE

UNITED STATES COURT OF APPEALS

For Tue Seventsa Circurr

No. 76-1708

Exoisz Bearr, as Administratrix for the Estate of Jeff

Beard, the Deceased,

Plaintiff-Appellant,

v.

Stantey B. Rosrnson, Roy Martin MitcHe.y, and Cer-

tain Officers of the Federal Bureau of Investigation,

whose true identities are unknown to the plaintiff,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 75 C 3204—Junius J. Horrman, Judge.

Arcuep Fesruary 8, 1977—Deciwep Sepremser 28, 1977

Before Baver, Woop, Circuit Judges, and Suarp, Dis-

trict Judge.*

Bauer, Circuit Judge. In this appeal we must de-

termine whether damage claims brought against a state

officer under the Civil Rights Acts, 42 U.S.C. § 1981, et

seq., and against federal officers under the Fourth Amend-

ment survive the death of the injured party, and whether

the claims are time-barred. The district court held that

some of the claims did not survive the death of the in-

jured party and that the other claims were time-barred.

We reverse.

*The Hon. Allen Sharp, United States District Court

for the Northern District of Indiana, is sitting by designa-

tion.

— 7a—

Plaintiff Eloise Beard brought this action in the dis-

trict court as administratrix of the Estate of Jeff Beard,

who allegedly was murdered by the defendants. Plain-

tiff sued Stanley Robinson, a Chicago policeman at the

time of the events underlying the suit, under the Civil

Rights Acts, 42 U.S.C. § 1981, et seq., and the other de-

fendants, Federal Bureau of Investigation personnel,

under Bivens v. Six Unknown Named Agents of the Fed-

eral Bureau of Narcotics, 403 U.S. 388 (1971). The eom-

plaint alleges that the defendants conspired to deprive,

and actually deprived, Jeff Beard of his constitutional

rights in the course of an FBI investigation into corrup-

tion among members of the Chicago Police Department.

As part of the investigation, the FBI purportedly em-

ployed defendant William O’Neal to covertly gather in-

formation about the Department by engaging in criminal

acts with Robinson and others. Defendant Roy Mitchell

served as O’Neal’s FBI contact. With the assistance of

Mitchell and other unknown FBI agents, Robinson and

O’Neal allegedly planned and committed Jeff Beard’s

murder on or about May 17, 1972, when they seized Beard

in Chicago under the pretext that they had a warrant for

his arrest; searched and handcuffed him, and drove him

to Indiana, where Robinson clubbed and shot him to death.

No warrant for Beard’s arrest ever existed. The com-

plaint, filed on September 25, 1972, seeks both compen-.

satory and punitive damages from the defendants for vio-

lating Beard’s rights under the Fourth, Fifth, Eighth,

Ninth and Fourteenth Amendments to the Constitution.

Upon motion of the defendants, the district court dis-

missed the complaint. The court reasoned that our deci-

sion in Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974)

mandates that federal civil rights actions survive for the

benefit of an injured party’s estate only to the extent that

the applicable state law permits such claims to survive.

Looking to the ITilinois Survival Act, Ill. Rev. Stat. ch.

<a

3, § 339°, the court concluded that the instant claims sur-

vived only insofar as they sought damages for the physi-

cal injuries Beard suffered. Relying on Jones v. Jones,

410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013

(1970), the court then dismissed the action altogether

because the physical injury claims were barred by Illinois’s

two-year statute of limitations. Ill. Rev. Stat. ch. 83, § 15.

Ti.

Survival

We turn first to the question of whether the claims al-

leged survive Beard’s death. Plaintiff presents several

theories for the survival of her action. She argues that

the action as a whole survives (1) under the Illinois Sur-

vival Act, both as an action to recover damages for “in-

jur[ies] to the person” and as an action “against officers

for misfeasance, malfeasance, or nonfeasance”; (2) under

Illinois common law; and (3) under federal common law.

We hold, as a matter of federal law, that under Illinois

law the action survives “against officers for misfeasance,

malfeasance or nonfeasance” and thus need not consider

plaintiff’s other arguments.

Neither the Civil Rights Acts nor the Supreme Court’s

decision in Bivens speaks to the abatement or survival of

actions brought thereunder. Faced with the absence of a

governing federal rule of decision, most courts that have

* Til. Rev. Stat. ch. 3, § 339 provides:

“In addition to the actions which survive by the

common law, the following also survive: actions of

replevin, actions to recover damages for an injury

to the person (except slander or libel), actions to re-

cover damages for an 7 to real or er prop-

erty, actions against iers for misfeasance, mal-

feasance, or nonfeasance of themselves or their d

uties, actions for fraud or deceit, and actions provid-

ed in Section 14 of Article VI of ‘An Act relating

to alcoholic liquors,’ approved January 31, 1934 as

amended.” :

—

considered the question of the survival of federal civil

rights claims have looked to state law, either on the au-

thority of 42 U.S.C. § 1988? or simply because reference

to state law obviated the need to fashion an independent

federal common law rule. E.g., Spence v. Staras, 507 F.2d

554, 557 (7th Cir. 1975): Hall v. Wooten, 506 F.2d 564 (6th

Cir. 1974): Brazier v. Cherry, 293 F.2d 401 (5th Cir.)

cert. denied, 368 U.S. 921 (1961); Pritchard v. Smith, 289

F.2d 153 (8th Cir. 1961). At least one court has found

it necessary to fashion an independent federal common

law rule when state law, which would have defeated the

survival of the federal claim, was deemed inconsistent

with the strong federal policy of insuring the survival

of federal remedies for violation of federal civil rights.

Shaw v. Garrison, 545 F.2d 980 (5th Cir. 1977).

Because we believe the borrowing of state law in the

circumstances of this case is completely consistent with

the federal policies underlying Bivens and the Civil Rights

Acts, we have no oecasion to fashion an independent

*42 U.S.C. § 1988 provides in pertinent part:

“The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of this

chapter and Title 18, for the protection of all persons

in the United States in their civil rights, and for their

vindication, shall be exercised and orced in con-

formity with the laws of the United States, so far as

such laws are suitable to carry the same into effect;

but in all cases where they are not adapted to the ob-

ject, or are deficient in the provisions necessary to

furnish suitable remedies a offenses against

law, the common law, as modi and changed by the

Constitution and statutes -

cause is so far as the same is not inconsistent

with the Constitution and laws of the United States,

= “oe

federal common law rule here. With respect to plaintiff’s

civil rights claims, 42 U.S.C. § 1988 authorizes our refer-

ence to state law insofar as it is “not inconsistent with

the Constitution and laws of the United States.” With

respect to plaintiff’s Bivens claim, the adoption of state

law likewise seems warranted since it is consistent with

the federal policies underlying Bivens.’

The applicable Tlinois law that we adopt as the gov-

erning federal rule is found in the Illinois Survival Act,

Til. Rev. Stat. ch. 3, § 339, which provides:

“In addition to the actions which survive by the

common law, the following also survive: actions of

replevin, actions to recover damages for an injury

to the person (except slander and libel), actions to

recover damages for an injury to real or personal

property or for the detention or conversion of per-

sonal property, actions against officers for misfea-

sance, malfeasance, or nonfeasance of themselves or

their deputies, actions for fraud or deceit, and actions

provided in Section 14 of Article VI of of ‘An Act

relating to alcoholic liquors’, approved January 31,

1934 as amended.”

In view of the Illinois Supreme Court’s declaration that

this act is “remedial in its nature and is to be liberally

construed,” McDaniel v. Bullard, 34 Til. 2d 487, 491, 216

N.E.2d 140, 143 (1966), we believe the district court erred

in relying on Kent v. Muscarello, 9 Ill. App. 3d 738, 293

N.E.2d 6 (2d Dist. 1973), for the proposition that this

action does not survive as an action “against officers for

* State survival statutes commonly have been —

as a matter of federal law for application to other federal

causes of action for which there is no federal rule re-

a abatement or survival. E.g., Cox v. Roth, 348 U.S.

(1955) (Jones Act); Just v. Chambers, 312 U.S. 383

(1941) (admiralty tort); Van Beeck v. Sabine Towing

Co., 300 U.S. 342 (1937) (Merchant Marine Act). See

also the other cases cited in Brazier v. Cherry, supra, and

Pritchard v. Smith, supra.

—lla—

misfeasance, malfeasance, or nonfeasance of themselves

or their deputies.” To be sure, Kent held that a malicious

prosecution action against two Barrington, Illinois police-

men did not survive the death of the injured party. Kent’s

holding that the policemen were not “officers” for the

purposes of the Illinois Survival Act, howeve’ was based

on the fact that the policemen were not deemed “officers”

at common law, by statute or by municipal ordinance. For

the latter proposition, Kent relied on Krawiec v. Indus-

trial Commission, 372 Til. 560, 564, 25 N.E.2d 27 (1939),

which held that policemen of the City of Chicago Heights,

Illinois were not made officers of the City by municipal

ordinance and thus were entitled to recover under the

Illinois Workmen’s Compensation Act. However, Krawiec

itself distinguished City of Chicago v. Industrial Com-

mission, 291 Tll. 23, 125 N.E. 705 (1920), which held that

City of Chicago policemen were made officers by city or-

dinances and thus were not entitled to workmen’s com-

pensation benefits. Since City of Chicago has not been

overruled by the Illinois Supreme Court and thus still

stands for the proposition that Chicago policemen are of-

ficers of the City, we feel compelled to follow City of

Chicago and hold that Chicago policemen are also “of-

ficers” for purposes of the Illinois Survival Act. Ac-

cordingly, we hold that the instant action brought against

defendant Robinson, sued in his capacity as a Chicago

policeman, survives Beard’s death. See Holmes v. Silver

Cross Hospital of Joliet, Illinois, 340 F. Supp. 125, 129

(N.D. Til. 1972).

Moreover, inasmuch as FBI agents are deemed federal

officers under federal law, see Lowenstein v. Rooney, 401

F. Supp. 952, 960-62 (E.D.N.Y. 1975), we believe that

plaintiff’s Bivens action also can be characterized as an

action “against officers” within the meaning of the Illinois

Survival Act. Accordingly, adopting as federal law the

Illinois Survival Act, we hold that plaintiff’s Bivens ac-

tion against the federal defendants survives as well.

witness

Ti.

Statute of Limitations

Neither the Civil Rights Acts nor Bivens fixes a time

limit within which suits brought thereunder must be

commenced. As to plaintiff’s civil rights claims, however,

precedents establish that the applicable limitations period

is that which a court of the State where the federal court

sits would apply had the action been brought there. O’Sul-

livan v. Felix, 233 U.S. 318 (1914); Duncan v. Nelson, 466

F.2d 939, 941 (7th Cir.), cert. denied, 409 U.S. 894 (1972) ;

see 42 U.S.C. § 1988. Hence, we look to Mlinois law to de-

termine the statute of limitations applicable to defendant

Robinson.

As to plaintiff’s Bivens claims, the parties to this ac-

tion agree that the applicable limitations period is that

which would govern an analogous action brought in a

court of the forum state. Reagan v. Sullivan, 417 F. Supp.

399 (E.D.N.Y. 1976); Lombard v. Board of Education of

the City of New York, 407 F. Supp. 1166, 1171 (E.D.N.Y.

1976), rev’d on other grounds, 502 F.2d 631 (2d Cir. 1974) ;

Ervin v. Lanier, 404 F. Supp. 15, 20 (E.D.N.Y. 1975);

see Fine v. City of New York, 529 F.2d 70, 76-77 (2d Cir.

1975). Accordingly, we will also look to Illinois law to de-

termine the statute of limitations applicable to the federal

defendants. We note, however, that our borrowing of state

limtiations periods to determine the timeliness of both

these claims is conditioned on the state limitations period

being consistent with the policies underlying the federal

rights of action. Occidental Life Insurance Co. v. EEOC,

45 U.S.L.W. 4752, 4755 (June 20, 1977); see 42 U.S.C.

§ 1988.

Although the parties agree that we should look to

Tlinois law to determine the applicable statute of limita-

tions, they disagree as to which Illinois statute of limita-

tions should be applied. The plaintiff, relying on Wakat

v. Harlib, 253 F.2d 59 (7th Cir. 1958), argues that Ilinois’s

_

five-year statute of limitations governing “all civil actions

not otherwise provided for” by the Illinois Limitations

Act, Tl. Rev. Stat. ch. 83, § 16,‘ governs both her claims.

Plaintiff notes that under Illinois law, this limitations

period applies to causes of action created by statute,

Blakeslee’s Storage Warehouses v. City of Chicago, 369

Til. 480, 17 N.E.2d 1, 4 (1938); Parmalee v. Price, 208

Til. 544, 70 N.E. 725 (1904) ; Gibralter Ins. Co. v. Varkalis,

115 il. App. 2d 130, 253 N.E.2d 605, 608-09 (1969),

aff'd, 46 Ill. 2d 481, 263 N.E.2d 823 (1970); Lyons v.

Morgan County, 313 Ill. App. 296, 40 N.E.2d 103 (1942),

and that the action created by the Civil Rights Acts is

such a cause of action. The same statute of limitations

should govern the claims brought against the federal offi-

cers, says plaintiff, because the Bivens action is analogous

to actions brought under the Civil Rights Acts, and it

would be incongruous to apply a different limitations

period to such actions merely because federal rather than

state officers are being sued.

The defendants, relying on Jones v. Jones, 410 F.2d

365 (7th Cir. 1969), cert. denied, 396 U.S. 1013 (1970),

argue that Illinois’s two-year statute of limitations for

‘Ill. Rev. Stat. ch. 83, § 16 provides:

“Except as provided in ion 2-725 of the ‘Uni-

form Commercial Code’, approved July 31, 1961, as

amended, and Section 11-3 of ‘the Illinois Public Aid

Code’, ve April 11, 1967, as ee actions

on unwritten contracts, expressed or implied, or on

awards of arbitration, or to recover Foe for an

injury = to property, real or personal, or » eng

cover possession personal or -

ages for the detention or couvitehde ~ oo and all

civil actions not otherwise provided for, shall be com-

——, within 5 years next after the cause of action

accru

="

“injur[ies] to the person, false imprisonment, and ab-

duction,” Ill. Rev. Stat. ch. 83, § 15,° should be applied

to plaintiff’s civil rights claims because the actions gov-

erned by this statute are the substantive offenses that

most closely resemble ‘the misconduct in which the de-

fendants here are alleged to have engaged. With respect

to the Bivens action, defendants contend that the two-

year limitations period should also govern because (1)

Bivens actions are not based upon a statutory liability

like civil rights actions, but are actions to redress “con-

stitutional torts,” and (2) the two-year statute of limita-

tions governing the instant civil rights claims should be

applied to the analogous Bivens claims as well.

We turn first to the question of which state statute of

limitations period applies to plaintiff’s statutory civil

rights claim and confess at the outset that the state of

the law in this Circuit regarding the limitations period

applicable to claims brought under federal civil rights

acts is less than lucid.

In Wakat v. Harlib, supra, the plaintiff sued several

Chicago police officers who arrested him without a war-

rant or probable cause and detained him six days

without charging him with a crime, without a!lowing

him to see an attorney, and without allowing him to

appear before a judge for a bail hearing. The officers

also coerced him into signing a confession later used in

court to convict him, searched his home and workplace

and seized his personal property without a warrant or

probable cause. The plaintiff’s action was based on 42

U.S.C. §§ 1983 and 1985, and we held his claims were

‘Til. Rev. Stat. ch. 83, § 15 provides:

“Actions for damages for an injury to the person,

or for false imprisonment, or malicious prosecution,

or for a statutory penalty, or for abduction, or for

seduction, or for criminal conversation, shall be com-

menced within two years next after the cause of ac-

tion accrued.” —

— 15a —

governed by [Illinois’s five-year statute of limitations

covering causes of action created by statute. Subsequent-

ly, Wakat’s holding was followed or cited without

disapproval in at least the following cases: Inada v.

Sullivan, 523 F.2d 485 (7th Cir. 1975); Duncan v. Nelson,

466 F.2d 939, 941 (7th Cir.), cert. denied, 409 U.S. 894

(1972); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir.

1971); Weber v. Consumers Digest, Inc., 440 F.2d 729,

731 (7th Cir. 1971); Baker v. F. & F. Investment, 420

F.2d 1191, 1197-98 (7th Cir.), cert. denied, 400 U.S. 821

(1970); Amen v. Crimmens, 379 F.Supp. 777, 779 (N.D.

Til. 1974); Holmes v. Silver Cross Hospital of Joliet,

Illinois, 340 F. Supp. 125, 128 (N.D. Ill. 1972).

In Jones v. Jones, supra, however, we took a different

tack toward the problem af ascertaining the applicable

limitations period for federal civil rights claims. The

Jones plaintiff had brought suit under 42 U.S.C. § 1983

against his ex-wife, members of her family, her lawyers,

and judges of the Illinois Circuit and Appellate Courts

for combining to deprive him of his constitutional rights

in a series of court actions involving his ex-wife’s claims

for alimony and child support that ultimately resulted in

his serving a jail term. After determining that the

judges were immune from suit and that the lawyers

could ot be sued under the Civil Rights Acts because

they were not acting under color of state law, we looked

to ‘‘the substance of the alleged injury’’ to determine the

applicable limitations period and held that the two-year

statute of limitations contained in Ill. Rev. Stat. ch. 83,

§ 15 governed the action against the remaining defen-

dants because the damages sought resulted from an

injury to the plaintiff’s person, false imprisonment, and

malicious prosecution. We attempted to distinguish

Wakat on the ground that the earlier case involved a

conspiracy claim brought under 42 U.S.C. § 1985, rather

than a Section 1983 claim. Subsequently, Jones was

cited with approval in Baker v. F. & F. Investment Co.,

489 F.2d 829, 837 (7th Cir. 1973), and followed by at

— l6a —

least three district courts in the Circuit. Cage v. Bitoy,

406 F. Supp. 1220 (N.D. Ill. 1976); Kleim v. Springborn,

327 F. Supp. 1289, 1290 (N.D. Ill. 1971); Skraptts v.

Skala, 314 F. Supp. 510 (N.D. Ill. 1970).

Upon reflection, it séems to us that Wakat and Jones

cannot stand together, for underlying the inconsistent

results reached therein* are two inconsistent approaches

to determining the applicable statute of limitations. The

Wakat approach treats all claims founded on the Civil

Rights Acts as governed by the five-year Illinois statute

of limitations applicable to all statutory causes of action

that do not contain their own limitations periods. Jones,

on the other hand, looks beyond the fact that a statutory

cause of action has been alleged and seeks to character-

ize the facts underlying plaintiff’s claim in terms of

traditional common law torts for purposes of determin-

ing the applicable state statute of limitations. Faced

with these two conflicting approaches that have gener-

ated inconsistent results within the Circuit, we now

believe it is necessary to overrule Jones and adopt the

Wakat rule as the law of the Cireuit for the following

reasons.*

* Apart from the Jones Court’s failure to recognize that

Wakat was based on 42 U.S.C. § 1983, as well as Section

1985 and thus could not be distinguished merely on that

ground, Wakat’s reasoning could have been applied with-

out strain to the Jones facts; the action brought by Jones

under 42 U.S.C. § 1983 could just as well have been charac-

terized as a statutory right of action governed by Illinois’s

five-year statute of limitations. Likewise, the damages

Wakat sought arose from injuries that could have been

characterized as injuries to his person, false imprison-

_s . abduction, all mentioned in Ill. Rev. Stat. ch.

* In view of our overruling Jones, the portions of this

inion relative to our holding have been circulated among

the judges of this Court in regular active service. No

ilies. Sens a rehearing en bane with respect to that

lding. Judge Tone did not participate in the Court’s

action.

— 17a —

We believe our choice of the Wakat rule is compelled

by the fundamental differences between a civil rights

action and a common law tort. The Civil Rights Acts do

not create “a body of general federal tort law.” Paul v.

Davis, 424 U.S. 693, 701 (1976). Rather, they

“creat(e] rights and impos[e] obligations different

from any which would exist at common law in the

absence of statute. A given state of facts may of

course give rise to a cause of action in common-law

tort as well as to a cause of action under Section

1983, but the elements of the two are not the same.

The elements of an action under Section 1983 are

(1) the denial under color of state law (2) of a right

secured by the Constitution and laws of the United

States. Neither of these elements would be required

to make out a cause of action in common-law tort;

both might be present without creating common-law

tort liability.” Smith v. Cremins, 308 F.2d 187, 190

(9th Cir. 1962) (footnote and citations omitted).

As Justice Harlan suggested with regard to the Civil

Rights Acts,

“a deprivation of a constitutional right is signifi-

cantly different from and more serious than a viola-

tion of a state right and therefore deserves a differ-

ent remedy even though the same act may constitute

both a state tort and the deprivation of a constitu-

tional right.” Monroe v. Pape, 365 U.S. 167, 194

(1961) (concurring opinion).

By following the Wakat approach of applying a uni-

form statute of limitations, we avoid the often strained

process of characterizing civil rights claims as common

law torts, and the

“[i]nconsistency and confusion [that] would result if

the single cause of actica created by Congress were

fragmented in accordance with analogies drawn to

rights created by state law and the several different

periods of limitation applicable to each state-created

_-

right were applied to the single federal cause of

action.” Smith v. Cremins, swpra at 190.

Moreover, we note that the Wakat approach of looking

to a general state statute of limitations prevails in most

of our sister circuits, while the Jones approach of looking

to the underlying tort to determine the applicable state

statute of limitations has been followed consistently only

by the Third Circuit.’

*E.g., Ammlung v. City of Chester, 494 F.2d 811, 814 (3d

Cir. 1974); Howell v. Cataldi, 464 F.2d 272, 277 (3d Cir.

1972). The Second and Ninth Circuits uniformly apply

state limitation periods for statutory causes of action.

E.g., Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.),

cert. denied, 414 U.S. 872 (1973); Swan v. Bd. of Higher

Education of the City of New York, 319 F.2d 56, 60

(1963): Donovan v. Reinbald, 433 F.2d 738, 741-42 (9th

Cir. 1970); Smith v. Cremins, 308 F.2d 187 (9th Cir.

1962). The Fourth Cireuit, in cases arising out of Vir-

ginia, applies that State’s general limitations period for

personal injuries rather than its shorter limitations per-

iod for intentional torts. That court reasons that a fed-

eral civil rights action is more serious than a common

law tort and thus deserves a longer statute of limitations.

Almond v. Kent, 459 F.2d 200, 203-04 (4th Cir. 1972);

followed in Runyon v. McCrary, 427 U.S. 160, 179-82

(1976), and Allen v. Gifford, 462 F.2d 615 (4th Cir. 1972).

There is a split in authority in the Fifth Cirenit. Some

cases apply state limitations periods for statutory actions.

White v. Padgett, 475 F.2d 79, 85 (5th Cir.), cert. denied,

414 U.S. 861 (1973); Franklin v. City of Marks, 439

F.2d 665 (5th Cir. 1971); Nevels v. Wilson, 423 F.2d

691 (5th Cir. 1970). Others apply the state statute of

limitations that would govern a common law action that

could be brought in a state court upon the same facts.

Shaw v. McCorkle, 537 F.2d 1289 (5th Cir. 1976) ; Shank v.

Spurill, 406 F.2d 756 (5th Cir. 1969); Beard v. Stephens,

372 F.2d 685 (5th Cir. 1967). The most recent cases

in the Sixth Circuit have applied state limitations periods

for statutory actions. Mason v. Owens-Illinois, Inc., 517

F.2d 520 (6th Cir. 1975); Garner v. Stephens, 4€0 F.2d

—

We thus hold that the Illinois five-year statute of

limitations applies to statutory claims brought under the

Civil Rights Acts. Jones v. Jones, 410 F.2d 365 (7th Cir.

—e cert. denied, 396 U.S. 1013 (1970), is hereby over-

Turning to the Bivens claims, we recognize plaintiff’s

argument for application of the same statute of limita-

tions that we apply to civil rights claims is a compelling

one. A contrary result could lead to the incongruous

application of inconsistent limitations periods to different

members of a single conspiracy, based solely on whether

an officer alleged to have committed the constitutional

violation was employed by the state or federal government.

Cf. Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 456 F.2d 1339, 1346-47 (2d Cir.

* (Continued)

1144 (6th Cir. 1972); Contra, Madison v. Wood, 410 F.2d

564 (6th Cir. 1969); Bufalino v. Michigan Bell Tel. Co.,

404 F.2d 1023, 1028 (6th Cir. 1968); Mulligan v. Schacter,

389 F.2d 231 (6th Cir. 1968). In Reed v. Hutto, 486 F.2d

534 (8th Cir. 1973), the Eighth Cireuit recognized the

existence of a clear split in the circuit between the two

methods of choosing an appropriate statute of limitations.

Since Reed, the court has avoided the problem of apply-

ing state statutes of limitations, other than those for

common law torts or for statutory actions, that “clearly

apply to civil rights actions. Chambers v. Omaha Public

chool District, 536 F.2d 222, 228 (8th Cir. 1976)

(Nebraska statute of limitations applying to “actions

upon a liability created by federal statute . . . for which

. . . no period of limitations is provided in such statute.”

Peterson v. Fink, 515 F.2d 815 (8th Cir. 1975) (Missouri

statute of limitations applying to actions against officers

for liabilities ineurred by official acts). The Tenth Cir-

cuit has applied general state statutes of limitations for

injuries to the rights of another not arising from a

contract and not otherwise enumerated.” Crosswhite v.

Brown, 424 F.2d 495 (10th Cir. 1970); Wilson v. Hinman,

172 F.2d 914 (10th Cir.), cert. denied, 336 U.S. 970 (1949).

— Ha —

1972) (immunity of state and federal officers). On the

other hand, simce Bivens actions are not creatures of

statute, the state law rationale used above for application

of the five-year statute of limitations is not appropriate

to Bwens claims. ;

With these considerations in mind, we look to the

Illinois statutes of limitations that we might apply.

Again we are faced with a choice between the two-year

limitations periods for torts in Ill. Rev. Stat. ch. 83, § 15,

and the five-year limitations period for “actions not

otherwise provided for” in Ill. Rev. Stat. ch. 83, § 16. We

ean eliminate the first choice for the same reasons we

refused to apply the Illinois statute of limitations for

torts to the state defendant here. Like civil rights claims,

Bivens claims for the deprivation of constitutional rights

cannot be equated with state tort claims. Both the ele-

ments of the two types of claims and the underlying

rights asserted are distinctly different. Regan v. Sullivan,

417 F. Supp. 399, 403 (E.D.N.Y. 1976). The Supreme

Court recognized these differences in Bivens itself:

“TAjs our cases make clear, the Fourth Amendment

operates as a limitation upon the exercise of federal

power regardless of whether the State in whose

jurisdiction that power is exercised would prohibit

or penalize the identical act if engaged in by a private

citizen.” 403 U.S. at 392.

“The interests protected by state laws regulating

trespass and the invasion of privacy, and those

protected by the Fourth Amendment’s guarantee

against searches and seizures, may be inconsistent

or even hostile.” 403 U.S. at 394.

The only other applicable statute of limitations is the

five-year catch-all period of limitations we applied to the

instant civil rights claims. For those claims, we held

that the five-year period applied because they were based

on a liability created by statute, for which Illinois courts

— 2a —

apply the five-year limitations period. For Bivens-type

claims, we think it inappropriate to apply the five-year

statute of limitations on that basis, but apply that statute

because no other Illinois statute of limitations can appro-

priately be applied. This conclusion is reinforced by the

knowledge that an identical statute of limitations period

will be applied to all the defendants in this action, thus

avoiding the inconsistent result of applying different stat-

utes of limitations to defendants who are charged with

engaging in a single conspiracy.

In summary, we hold that this survivors action may

be brought by the plaintiff and that her claims are not

time-barred. Accordingly, the district court’s judgment is

reversed and the case is remanded for further procecdings.

28 U.S.C. § 1652:

The laws of the several states, except where the Con-

stitution or treaties of the United States or Acts of

Congress otherwise require or provide, shall be re-

garded as rules of decision in civil actions in the

courts of the United States, in cases where they apply.

28 U.S.C. § 2401:

(a) Every civil action commenced against the United

States shall be barred unless the complaint is filed

within six years after the right of action first accrues.

The action of any person under legal disability or

beyond the seas at the time the claim accrues may be

commenced within three years after the disability

ceases.

(b) A tort claim against the United States shall be

forever barred unless it is presented in writing to the

appropriate Federal agency within two years after

such claim accrues or unless action is begun within

six months after the date of mailing, by certified or

registered mail, of notice of final denial of the claim

by the agency to which it was presented.

28 U.S.C. § 2680(h) :

The provisions of this chapter and section 1346(b)

of this title shall not apply to—

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution,

abuse of process, libel, slander, misrepresentation,

deceit, or interference with contract rights: Provided,

That, with regard to acts of omissions of investiga-

tive or law enforcement officers of the United States

Government, the provisions of this chapter and sec-

— 2a —

tion 1346(b) of this title shall apply to any claim

arising, on or after the date of the enactment of this

proviso, out of assault, battery, false imprisonment,

false arrest, abuse of process, or malicious prosecu-

tion. For the purpose of this subsection, “investiga-

tive or law enforcement officer” means any officer of

the United States who is empowered by law to exe-

cute searches, to seize evidence, or to make arrests

for violations of Federal law.

42 U.S.C. § 1983:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1986:

Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in section

1985 of this title, are about to be committed, and hav-

ing power to prevent or aid in preventing the com-

mission of the same, neglects or refuses so to do, if

such wrongful act be committed, shall be liable to the

party injured, or his legal representatives, for all

damages caused by such wrongful act, which such

person by reasonable diligence could have prevented;

and such damages may be recovered in an action on

the case; and any number of persons guilty of such

wrongful neglect or refusal may be joined as defen-

dants in the action; and if the death of any party be

caused by any such wrongful act and neglect, the le-

gal representatives of the deceased shall have such

action therefor, and may recover not exceeding $5,000

damages therein, for the benefit of the widow of the

— %a —

deceased, if there be one, and if there be no widow,

then for the benefit of the next of kin of the deceased.

But no action under the prcvisions of this section

shall be sustained which is not commenced within one

year after the cause of action has accrued.

42 U.S.C. § 1988:

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of this

chapter and Title 18, for the protection of all persons

in the United States in their civil rights, and for their

vindication, shall be exercised and enforced in con-

formity with the laws of the United States, so far

as such laws are suitable to carry the same into effect;

but in all cases where they are not adapted to the ob-

ject, or are deficient in the provisions necessary to

furnish suitable remedies and punish offenses against

law, the common law, as modified and changed by the

constitution and statutes of the State wherein the

court having ‘jurisdiction of such civil or criminal

cause is held, so far as the same is not inconsistent

with the Constitution and laws of the United States,

shall be extended to and govern the said courts in the

trial and disposition of the cause, and, if it is of a

criminal nature, in the infliction of punishment on the

party found guilty. In any action or proceeding to

enforce a provision of sections 1981, 1982, 1983, 1985,

and 1986 of this title, title IX of Public Law 92-318,

or in any civil action or proceeding, by or on behalf

of the United States of America, to enforce, or charg-

ing a violation of, a provision of the United States

Internal Revenue Code, or title VI of the Civil Rights

Act of 1964, the court, in its discretion, may allow

the prevailing party, other than the United States, a

reasonable attorneys fee as part of the costs.

Til. Rev. Stat., ch. 83, § 16:

Except as provided in Section 2-725 of the “Uniform

Commercial Code”, enacted by the Seventy-second

— Sa —

General Assembly, actions on unwritten contracts,

expressed or implied, or on awards of arbitration, or

to recover damages for an injury done to property,

real or personal, or to recover the possession of per-

sonal property or damages for the detention or con-

version thereof, and all civil actiens not otherwise

provided for, shall be commenced within 5 years next

after the cause of action accrued.

Ill. Rev. Stat., ch. 83, § 15:

Actions for damages for an injury to the person, or

for false imprisonment, or malicious prosecution, or

for a statutory penalty, or for abduction, or for se-

duction, or for criminal conversation, shall be com-

menced within two years next after the cause of action

Ill. Rev. Stat., ch. 3, § 339:

In addition to the actions which survive by the com-

mon law, the following also survive: actions of re-

plevin, actions to recover damages for an injury to

the person (except slander and libel), actions to re-

cover damages for an injury to real or personal prop-

erty or for the detention or conversion of personal

property, actions against officers for misfeasance,

easance, or nonfeasance of themselves or their

deputies, actions for fraud or deceit, and actions pro-

vided in Section 14 of Article VI of “An Act relating

to alcoholic liquors”, approved January 31, 1934, as

amended.

=

APPENDIX D

In Tue Unirep States Disraicr Court

* * (Caption—No. 75C 3204) * *

JURISDICTION

Sept. 25, 1975

1. This is a civil action for damages arising from de-

fendants’ acts, under color of law, depriving Jeff Beard

of rights secured by the Constitution and laws of the

United States. Specifically, some or all of the defendants,

while acting in their individual and official capacities as

either Chicago Policemen or Federal officials, on or about

May 17, 1972, assaulted Jeff Beard with a deadly weapon

and killed him. By these acts Jeff Beard was deprived of

his rights, privileges, and immunities as guaranteed and

protected by the Fourth, Fifth, Eighth, Ninth, and Four-

teenth Amendments to the Constitution.

2. The jurisdiction of the Court is invoked pursuant

to 28 U.S.C., section 1331. The amount in controversy,

exclusive of interest and costs, exceeds the sum or value

of ten thousand dollars.

3. The jurisdiction of the Court, as to defendant Robin-

son, is further invoked pursuant to 28 U.S.C., section 1343.

PLAINTIFF

4. Plaintiff ELOISE BEARD, the natural and legal

sister of the deceased JEFF BEARD, is the duly ap-

pointed administratrix of the decedent’s estate. Plaintiff

is a resident of the State of Illinois and a citizen of the

United States.

DEFENDANTS

5. Defendant STANLEY B. ROBINSON, at all times

material to this complaint, was a Sergeant of the Chicago

Police Department.

— Wa—-

6. Defendant WILLIAM O’NEAL, a/k/a WILLIAM

McKINLEY, at all times material to this complaint, was

a paid agent, employee, informant, and operative of the

Federal Bureau of Investigation in Chicago, since 1968.

7. Defendant RAY MARTIN MITCHELL, at all times

material to this complaint, was a duly appointed Special

Agent in the Federal Bureau of Investigation, assigned

to the Chicago office. MITCHELL was the contact agent

for defendant O’NEAL, and controlled his activities. De-

fendant MITCHELL had knowledge of the illegal acts

committed on or about May 17, 1972, prior to their oc-

currence.

8. All defendants are sued in both their individual and

official capacities.

9. All defendants are residents and citizens of the

County of Cook, State of Illinois, and of the United States

with the exception of RAY MARTIN MITCHELL, who

on information and belief, resides in Joliet, Illinois, and

WILLIAM M. O’NEAL, whose whereabouts are unknown

to plaintiff but now remains in the custody and care of

the United States Department of Justice.

10. The Federal Bureau of Investigation, at all times

material to this complaint, was collecting intelligence in-

formation on certain members of the Chicago Police De-

partment, in general, and ROBINSON in particular.

11. These intelligence gathering activities in part, en-

compassed the covert operations which resulted in the

sacrifice of the lives of Jeff Beard and others, in order

to expose suspected corruption among members of the

Chicago Police force.

12. One of the ploys decided upon by MITCHELL and

others whose identities remain unknown was the use of

u paid informant, defendant O’NEAL, to provoke and per-

petrate acts of violence in order to gather intelligence

information on ROBINSON and other members of the

Chicago Police Department.

=

13. In order to better gather the desired information,

MITCHELL directed O’NEAL to join in the furtherance

of criminal acts being directed by ROBINSON and others.

These acts included but were not limited to, exortion and

murder. :

14. At all times material to this complaint, O’NEAL

supplied information to the FBI, through his contact,

MITCHELL, about both the conspiracy, and ROBIN-

SON’S participation therein. The information supplied

included reports of acts of violence in which defendant

O’NEAL, himself, had participated.

15. On or prior to May 17, 1972, defendants ROBIN-

SON, O’NEAL, MITCHELL, and others not presently

known to plaintiff, participated in planning the acts which

resulted in the murder of Jeff Beard.

16. On or about May 17, 1972, sometime after 10:00

P.M., defendants ROBINSON and O’NEAL accosted and

seized Jeff Beard. ROBINSON stated that he had a war-

rant for Beard’s arrest and directed him to go along

peacefully. Continuing to act under color of law, defen-

dant ROBINSON searched and handcuffed Jeff Beard

and placed him in a car driven by O'NEAL. In fact, no

arrest warrant existed.

17. Subsequent to the illegal abduction described in

Paragraph 17, O’NEAL, accompanied by ROBINSON,

drove Jeff Beard from Chicago to Indiana. Prior to ar-

riving in Indiana, ROBINSON ordered the car stopped,

made a telephone call, and then took control of the car for

the remainder of the journey.

18. Upon arrival in Indiana, ROBINSON directed Jeff

Beard to step out of the car, and then ROBINSON clubbed

and shot Jeff Beard to death.

19. The events described in Paragraphs 16-19, were

accomplished with the direct participation and assistance

of ROBINSON, O’NEAL, MITCHELL, and others pres-

ently unknown.

—_—

20. The unjustifiable use of excessive and deadly force

by these defendants, and the planning and encouragement

of same, all performed under color of law, deprived Jeff

Beard of his rights, privileges, and immunities as guar-

anteed and protected by the Constitution and Laws of the

United States, and as such amounted to a conspiracy to

interfere with Jeff Beard’s civil rights.

21. Jeff Beard was deprived of his right to be free

from illegal searches and seizures, as guaranteed by the

Fourth Amendment to the Constitution of the United

States by the defendants’ illegal abduction of his person,

effected under color of law.

22. Jeff Beard was deprived of his right to life, liberty

and property, as guaranteed by the Fifth and Fourteenth

Amendments to the Constitution of the United States, by

the illegal and summary punishment, and planning of

same, by the defendants.

23. Jeff Beard was deprived of his right to be free

from cruel] and unusual punishment, as gua*anteed by the

Eighth Amendment to the Constitution of the United

States, by the defendant’s brutal, unjustifiable, and sum-

mary punishment of plaintiff’s decedent, and by the plan-

ning and encouragement of same.

24. Defendant Robinson was convicted in the United

States District Court for the Northern District of Illinois

of depriving Jeff Beard of his right to life, liberty and

property without due process of law; that conviction was

affirmed by the United States Court of Appeals for the

Seventh Circuit in August, 1974.

25. Violation of the commands of the Constitution and

specifically, the provisions of the Fourth, Fifth, Eighth,

and Ninth Amendments give rise to an implied right of

recovery for the illegal activities of federal officials, act-

ing under color of law.

26. The rights guaranteed to Jeff Beard by the Fourth,

Fifth, Eighth, Ninth, and Fourteenth Amendments are

similarly protected against state action by the due process

— 20a —

clause of the Fourteenth Amendment to the Constitution

and the provisions of 42 U.S.C., section 1981 et seq.,

particularly, sections 1983 and 1985.

WHEREFORE, plaintiff ELOISE BEARD, as Admin-

istratrix of the Estate of JEFF BEARD, demands judg-

ment against defendants ROBINSON, O’NEAL, MITCH-

ELL, and others not presently known to her, jointly and

severally, for compensation for damages in the amount of

$250,000.00 and further demands judgment against said

defendants, jointly and severally, for punitive damages in

the amount of $500,000.00, plus cost of this action, attor-

ney’s fees and other such relief as this court deems just,

proper, and equitable.

Edwin A. Rothschild

Harold C. Hirshman

Peter M. Weil

Lois Kraft

By

One of the Attorneys for

Eloise Beard, as Administratrix

of the Estate of Jeff Beard

Of Counsel;

Sonnenschein Carlin Nath

& Rosenthal

8000 Sears Tower

Chicago, Illinois 60606

Telephone: 876-8000

American Civil Liberties Union

5 South Wabash

Chicago, Illinois 60603

Telephone: 236-5564

—3la —

STATE OF ILLINOIS )

) ss

COUNTY OF COOK )

CERTIFICATE OF SERVICE

, being first duly sworn on oath de

poses and says that she is employed in the Office of the

United States Attorney for the Northern District of Il):-

nois; that on the 4th day of February, she will hand a

copy of

DEFENDANTS’ MOTION TO FILE INSTANTER,

MOTION TO STAY PROCEEDINGS

to one or all of the following named individuals, on said

date at the hour of about 10:00 a.m. in open court in the

courtroom of the Honorable Hubert L. Will, Room 2341.

Edwin A. Rothschild,

Harold C. Hirshman,

Peter M. Weil, and

Gary S. Gildin, Esqs.

Sonnenschein, Carlin, Nath & Rosenthal

233 South Wacker Drive, Suite 8000

Chicago, Illinois 60606

American Civil Liberties Union

5 South Wabash

Chicago, Illinois 60603

Subscribed and sworn to before me

this —————- day of , 1977.

Notary Public

APPENDIX E

(OL6T “27D 430T) S6P

PZ'd SZP ‘UMOIG “A Vd; YABBOAD "wak & (T96T) S68 “UV IO THO eT vemueT Yo

(LL6T “2D U9) ZT

Pz’4 SSS ‘2ewwerg “A UTISNY ae 4 Tt*soezs “D°u"o oTuo

(S46t *27D YI»)

. ‘uoqueIg “A KO “ah (z)eS-TS T°UD eUTTOZeD

Ly Ped 62S as ° . Y32ON JO SOINZIS TeI0USD YT eUTTOI®D YII0N

(LL6T *2TD puz) (S46t ‘ddng Aeuutyon)

9ZL PZ*ad OSG ‘NURIA “A 2040N "aA € (Zz) eTZS ABT OWId*ATO’A‘N 410K ACN

(996T “2TD PE)

ze pz‘'a 6OE ‘UITWS “A seybnH "aA 2 3 Z-eT'vZ “W'S'*C’N Aesirer Aon

(LL6T *2TD 436)

@0C PZ*d 99S ‘AMNeYDS *A UOSeW "mA € (e@) (C)O6T*TT “S*U'N epeAON

(946T°2TD 498) ZZ PLA OES ‘**9STG

TOOYSS OTTGNd eyeuwO “A SrEequeyuD "ah € 6TZ-SZS “2¥IS" ACU “GON eXseIqGeN

(TL6T) “G*D°OW “G*M)

Ltt “ddns*d Zee ‘Te179L “A UOSTNG "ah ¢ (Pv) OZT*9TSS S*H'W'A Fanosstn

(946T “2TD 49S)

68ZT PZ*d LES ‘PTXIODOW “A AMPS "ak 9 6P-T-STS “UUW SPOD “SETH Tddysstsstw

TS6°S°N 90) Up Tea CPOT*S*N SOP

‘ep “3285 (TL6T “2TD 438) GPP

pPz‘d OS) ‘8e2"3S PeITUN “A ebeAesS , "ak Zz (T)LO°TOSS “¥°S*H e208 eUuUTH

(696T “2TD 439)

p9S PZ*4d OTR ‘poom “A UOSTPeN “ak € so9°4zS “v'°S'H uebTyoTH

(LL6T “ATS 3ST) OFZ

pz’4a 69S ‘Aanqttw *A ‘dz0D 2epey "ak € vzZS 092 YO ‘UUY SAPT*USD ‘SseH S33 esNnyoesseN

(CL6T “PW °G) C6?

*-ddng*a €9€ ‘MOTSOG "A PTPUCCGON "aA € *bes *3@ tT ‘@ TE 328 LS6T “PH POD puetAzew

Xi ya0Ouanv pofied o3n3e3s o7e3s

Tt e6ed

(LLGT *32TD "9S) ORL

PzZ*4d £95 ‘Uewer0g “A eTQuNH "aA 1 SESE *32V POD TTATS *e7 eueTstnoT

(LL6T *2T9 439)

SS PZ°4 SSS ‘STPPEM “A eTOTWIED "ak 1 (®)(T)OPT*E TOS “S*u’yx Axon quey

po 6T) 600T

"S°D bTb *U@P 3205 (E£L6T “ATO

4Y38) PZ*d 6Le ATTea *A UOSsUYyor "aK 2 z’epaqne ‘T*pT9S “w'd'T enol

(946T *2TD UIL) BHT PZ*4A LES

(Atjtetoeds burzanouos *f ‘bTzuoy)

*ATUN “PUL JO BOOISMNAL *A TITH "2h Zz C09-7§ “UY pod eUuPTpUT sUINng wueTpur

(SL6T°PH'G) $6 "ddns*d ZOD

‘TtemeH JO AqunoD *A ernwojO0S “2K 9 *S°U"H ‘ZT-LS9 YOTIOeS TTeAeH

(696T “34D 49S) LSe

Pz*d 9OD ‘TI tMadgs ‘A yUeAUS "aA 2 POOT-C§ “BD epod ep bavvwy

(S2Z6T “27D UIS) £92

PZ*d 905 ‘SUPYPEN *A TTOMOEG "ah » TT’S6 § “W'S*d ©,380m ePTI014

(plot

*toa°a) ete ‘*ddns*a Tee ‘o2rmrqog

go AyyszaatuN ‘A UTaIsUepIO0D "ah € 90TSSS “D*T9C OT e1eAe Teg

(LL6T *2TD pz? ;

499 PT°4d BSS ‘USTEM “A SWRTTTTM "aK € LLS-2S8 ‘“v'sS'D"D WNT zOeUUOD

(LL6T *2TD 436) 698 (t)eces

pz'4d 99S “*TeD JO B3R9S “A Aottsza *2h £ SzNpesoczd TTATD JO @pod “T#D etTusozTTeD

(LL6T *2TD 438)

pOTT PZ‘d 79S ‘UURH “A HIPTD "aK € 907-Let S$ 83"3S*x%2v sesuexzv

(CL6T “ATS UIS) 69ET PZ "4 ELD

preog [e}UeW eweqeTY “A [TTeYsog Oe 9z7$ ‘L “IIL “BTW JO epoD eweqeiy

X7FASUINYV potied e3n3835 o303s

(SL6T “STM *G"M)

999 "G'u'd 49 ‘S80N “A seTobreEN

(LL6T “AT 436) ZHTT

PZ"4 65S ‘AQUNOD Bd20TE “A eBNoYS

(LL6T “2TD U30) 6E6

Pt*d ISS ‘Seu0L “A VOSTIz0K

(946T *“2TD 43S)

6871 PZ'd PHS ‘320UG “A TTOeUS

(€L6T “2ATD 4YI9) C6L

PZ'4 6£Sd ‘324U6TIMmM “A VOStTzzeH

(L461 “2TD pac)

6TT PZ°4 LOS ‘TU®TG *A @3TTOd

XzFIOUINY

€ obvyg

“aA 2

"ak €

"2A Tt

(®)TZ-€688 #e3n3e3¢ UTSsUCOSTH

(®)O80°9T*h “M*O*e

97-88 @pod “eA

97SS 328 “UUY" BIg ATO ACY’ KEL

vOe-87§ “WD's

vcs ae a - ” -

TSS*ZT°32 “Uuy’3eaS* ea

e303899

uTSUOOS Tm

uozbutysem

eTuTbata

sexe

eessauuaL

etTueaTAsuued

e3e89S