Petition for Writ of Certiorari — Gramenos v. Jewel Cos., Inc.

Supreme Court, U.S.

86-884 FILED

No. | NOV 28 1986

JOSEPH F. SPANIOL, JR.

CLERK

In THE

Supreme Court of the Anited States

Octroser TERM, 1986

JAMES N. GRAMENOS,

Petitioner,

Vv.

JEWEL COMPANIES, INC., JOHNNY VAUGHN, JOSEPH

SCHMIT, FRANK COSGROVE, and SGT. FRANK HEATLEY,

Respondents.

- -—~— we re te ~~

rn tte oe ==

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JAMES A. STAMOS

900 W. Jackson Boulevard

Suite 4E

Chicago, Illinois 60607

(312) 666-7766

Counsel of Record

JAMES N. GRAMENOS

6743 N. LaPorte Avenue

Lincolnwood, Illinois 60646

(312) 677-7261

Pro Se

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTIONS PRESENTED

1. Are fourth amendment rights violated when the

police make an arrest for a minor misdemeanor, absent

any exigent circumstances, on the uncorroborated allega-

tions of a supermarket guard where the arresting officers

(1) refused to interview available witnesses, (2) conducted

no independent investigation, (3) never knew the guard

or otherwise established his reliability, and (4) repeated-

ly refused or declined to hear the petitioner’s version of

the dispute when he denied the guard’s allegations?

2. Has a private supermarket engaged in “state action”

in violation of 42 U.S.C. Section 1983 where it knowing-

ly engages in a customary plan or working agreement

with the local police

(a) whereby the police allow the attesting of the neces-

sary signatures to a store form-complaint out of the pres-

ence of the authorized state official in violation of state

law and cause the perjurious document to be filed in the

_ State court to initiate criminal charges, and/or

(b) whereby the police, without independent investiga-

tion or probable cause, will arrest anyone the store de-

tains for shoplifting and designates for arrest?

il

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED .................. i

TABLE OF. AUTHORITIES ......0..5.0....: iv

foyilt tg 456, Sanne re nIrK Ween 5s 1

SRSMEMIERIEMIUE kiss 54s a aucwe meter aioe 2

ILLINOIS STATUTES INVOLVED .......... 3

STATEMENT OF THE CASE ............... 4

(a) Record In The District Court And Sev-

enth Cirewit AGOGO .0 fo occa cesssee 4

(b) Petitioner’s Encounter At The Respon-

dent Jewel Supermarket ............. 7

(c) Police Failed To Speak To The Store

Manager Or Other Witnesses Concerning

The Improbability Of The Supermarket

Guarad’s Allegations .................. 9

(d) The Arrest By Polies ......3...5..... 10

(e) Criminal Proceedings In The State

CANE <0 vc 0 shih 6s ocd 12

(f) Section 1983 Complaint .............. 13

REASONS FOR GRANTING THE WRIT:

I.

PETITIONER’S FOURTH AMENDMENT

RIGHTS WERE VIOLATED WHEN HE WAS

ARRESTED BY THE POLICE WITHOUT A

WARRANT FOR MISDEMEANOR RETAIL

THEFT ON THE UNCORROBORATED AL-

LEGATIONS OF A SUPERMARKET SECU-

RITY GUARD WHERE THE ARRESTING

- OFFICERS DECLINED TO INTERVIEW

AVAILABLE WITNESSES, DECLINED TO IN-

| TERVIEW THE ACCUSED, AND DECLINED

TO CONDUCT ANY INDEPENDENT INVES-

TIGATION PRIOR TO ARREST.

THE JUDGMENT OF THE SEVENTH CIR-

CUIT CONFLICTS WITH THE DECISIONS OF

THIS HONORABLE COURT, THREE OTHER

FEDERAL CIRCUITS, AND THE STATE OF

SE ARG ae NeW ew see eer cer secesc cece

A. The Decision Of The Seventh Circuit Is

In Conflict With Decisions Of The Fifth,

Eighth And Tenth Circuits ..........

B. The Decision At Bar Is In Conflict With

Prior Decisions Of The Seventh Circuit ..

C. The Decision At Bar Conflicts With Deci-

sions Of This Honorable Court Inasmuch

As The Seventh Circuit Employs A

Lower Standard Of Probable Cause To

Validate Petitioner’s Arrest ..........

D. The Seventh Circuit Decision Interpreting

Illinois Law Is In Conflict With The Deci-

sions Of The Illinois Supreme Court .

II.

JEWEL’S ILLEGAL UTILIZATION OF THE

CRIMINAL COMPLAINT AND THE CUS-

TOMARY PLAN OR AGREEMENT WITH THE

POLICE MADE JEWEL A STATE ACTOR

LIABLE UNDER SECTION 1983 ..........

A. Jewel’s Illegal Utilization Of The Criminal

Complaint And Its Filing The Fraudulent

Document In The State Court Creates

Section 1983 Liability ................

B. Evidence Of A Customary Plan To Have

Police Arrest Anyone Jewel Wanted Ar-

LES cae cabs © Gen KKCbAn eect nes

C. Jewel Used The Threat Of Arrest As A

“Bargaining Chip’ To Have Petitioner

Accede To Their Demands ...........

SCs a nia sav eessneecenaneaes

14

15

17

19

21

24

24

26

S 8

iv

TABLE OF AUTHORITIES

Cases PAGE

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12

7 ff: Pe ere pers re ee 6, 20

Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d

ee EE SoG wks saninosecusnsdenecenas 19, 20, 21

Butler v. Goldblatt Bros. Inc., 589 F.2d 323 (7th

| Ce EE aad bone kee da Rar ncwauhdn ned ies 18, 19

Carrasco v. Klein, 381 F.Supp. 782 (E.D. N.Y.

ee Eg re Ve Mey pe gh a a) 25

Classon v. Shopko Stores Inc., 435 F.Supp. 1186

ro rere oy re

Delatte v. Genovese, 273 F.Supp. 654 (E.D. La.

SEE Wie kindaes bas Poa hed eek eee ak ak 25

Draper v. United States, 358 U.S. 307, 79 S.Ct.

— eee: Fs fo Ere 21

Duriso v. K-Mart No. 4195, Division of S.S. Kresge

Company, 559 F.2d 1274 (5th Cir. 1977) ...

(cuebnke tite baka eeaeabe otbend a aan 15, 27, 29

Dutton v. Roo-Mac, Inc., 100 Ill.App.3d 116, 426

Pee. Me GED cen dco db cotkicdavecdouc’s 22

El Fundi v. Deroche, Manager of Target Store No.

4, Division of Dayton-Hudson Corporation, 625

is & ££ es i = eee ee 17, 29

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76

me SO eee 6, 20, 21, 24

Lugar v. Edmonson Oil Co., 457 U.S. 922, 102

S.Ct. 2744, 73 L.Ed.2d 482 (1982) ......... 25, 26

v

Lusby v. T.G.&Y. Stores, Inc., 749 F.2d 1423 (10th

Cir. 1984), vacated in part 106 S.Ct. 40 (1985),

affd on remand 796 F.2d 1307 (1986) ... 16, 29, 30

Moore v. Marketplace Restaurant, Inc., 754 F.2d

SR CHU GE. SE ch evcocssccasces 17, 18, 27, 29

People v. Foss, 18 Ill.App.3d 496, 309 N.E.2d 677

Ce: Sk EE Gaeshabecscdbccheasesceveds 21, 22

People v. Tisler, 103 Ill.2d 226, 469 N.E.2d 147

PE A oesiddakikohskaassh nce cdarnouaen 22, 23, 24

Rosenblatt v. Baer, 383 U.S. 75 (1966) ........ 30

Smith v. Brookshire Brothers, Inc., 519 F.2d 93

Se MSE chclachvicbudds scenacanueusan 16, 27

Spinelli v. United States, 393 U.S. 410, 89 S.Ct.

584, 21 L.Ed.2d 637 (1969) ................ 6, 20

United States v. Wiseman, 445 F.2d 792 (2d Cir.

SUED ces bica dscbbetmetansonsstades beueesse 25

Statutes

Oh icc seis cen ae 25

SD Re EE, Sitidndacne duassivansveanes 25

y Bib tee eS | | ree rrrrrrrrr rer rere 2

28 U.S.C. Sec. ae eae 4

Tc Se ee Aad aK ec ecckasss: 2, 4, 13, 14, 25

Hil. Rew. Ghat, Gh. TB, Bee. TES ccsccsccsccses 3

Ill. Rev. Stat., ch.-3B, See. 107-2 ......2.0080. 3

Ill. Rev. Stat., ch. 38, Sec. 107-6 ............. 3

Ill. Rev. Stat., ch. 38, Sec. 107-14 ............ 3

Ill. Rev. Stat., ce. BB, See. WIS. 2.2.2. ccccces 3, 13

i ae ee: Se es a hs vs ns how kcesds 4

In Tue

Supreme Court of the Cnited States

Ocroszr Term, 1986

JAMES N. GRAMENOS,

Petitioner,

v.

JEWEL COMPANIES, INC. JOHNNY VAUGHN, JOSEPH

SCHMIT, FRANK COSGROVE, and SGT. FRANK HEATLEY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioner James N. Gramenos respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Seventh Circuit, entered in the above entitled proceeding

on July 25, 1986.

OPINIONS BELOW

The opinion of the Court of Appeals for the Seventh

Circuit is reported in 797 F.2d 432, and is reprinted in

the Appendix hereto, App. p. 1.

ilies

The memorandum decision of the United States District

Magistrate, as adopted by the United States District

Court for the Northern District of Illinois, has not been

reported. It is reprinted in the Appendix hereto, App. p.

21. The order of the district court granting respondents’

motion for summary judgment and adopting the report

and recommendation of the magistrate is reprinted in the

Appendix hereto, App. p. 20.

JURISDICTION"

Invoking federal jurisdiction under 42 U.S.C. Sec. 1983,

the petitioner brought this suit in the Northern District

of Illinois on February 11, 1981. On September 11, 1985,

the district court granted the respondents’ motions for

summary judgment. (App. 20).

On petitioner’s appeal, the Seventh Circuit on July 25,

1986, entered a judgment and an opinion affirming the

orders, except that portion granting summary judgment

on the claim of excessive detention which was vacated and

remanded to the district court for further proceedings.

(App. 1, 17).

The petitioner filed a timely petition for rehearing and

suggestion of rehearing en banc which was denied on

August 29, 1986. (App. 19). The jurisdiction of this Court

to review the judgment of the Seventh Circuit is invoked

under 28 U.S.C. Sec. 1254(1).

~

ILLINOIS STATUTES INVOLVED

Ill. Rev. Stat., ch. 38, Sec. 32-6. Performance of Un-

authorized Acts. A person who performs any of the follow-

ing acts, knowing that his performance is not authorized

by law, commits a Class 4 felony: (pertinent text reads)

. . . (b) Acknowledges the execution of any document

which by law may be recorded; .. .

Ill. Rev. Stat., ch. 38, Sec. 107-2. Arrest by Peace Offi-

cer. (The pertinent text reads): . . . A peace officer may

arrest a person when: (c) He has reasonable grounds to

believe that the person is committing or has committed

an offense.

Ill. Rev. Stat., ch. 38, Sec. 107-6. Release by Officer of

Person Arrested. A peace officer who arrests a person

without a warrant is authorized to release the person

without requiring him to appear before a court when the

officer is satisfied that there are no grounds for criminal

complaint against the person arrested.

Ill. Rev. Stat., ch. 38, Sec. 107-14. Temporary Question-

ing Without Arrest. A peace officer, after having identi-

fied himself as a peace officer, may stop any person in

a public place for a reasonable period of time when the

officer reasonably infers from the circumstances that the

person is committing, is about to commit, or has com-

mitted an offense as defined in Section 102.15 of this

Code, and may demand the name and address of the per-

son and an explanation of his actions. Such detention and

temporary questioning will be conducted in the vicinity

of where the person was stopped.

Ill. Rev. Stat., ch. 38, Sec. 111-3. Form of Charge. (The

pertinent text reads): ... (b) An indictment shall be

a a

signed by the foreman of the Grand Jury and an infor-

mation shall be signed by the State’s Attorney and sworn

to by him or another. A complaint shall be sworn to and

signed by the complainant... .

Ill. Rev. Stat., ch. 110, Oaths and Affirmations. (The

pertinent text reads): . . . Perjury. Sec. 5. All oaths, af-

firmations, affidavits and depositions, administered or

taken as provided in this act, shall subject any person

who shall so swear or affirm willfully and falsely, in

matter material to any issue or point in question, to like

pains and penalties as are inflicted by law on persons con-

victed of willful and corrupt perjury.

STATEMENT OF THE CASE

(a) Record In The District Court And Seventh Circuit

Action.

In @ Section 1983 action, the Seventh Circuit affirmed

the district court’s grant of summary judgment as to all

issues except the prolonged detention and incarceration

of the petitioner, remanding that issue to the district court

for further proceedings. (App. 17). The jurisdiction of the

district court was invoked in a civil action for unlawful

arrest and the deprivation of rights under 42 U.S.C. Sec.

1983, and under 28 U.S.C. See. 1331.

Petitioner alleged that he was arrested by respondent

police without probable cause and prosecuted for retail

theft, a misdemeanor, on the uncorroborated allegations

of a private security guard while petitioner was shopping

in respondent’s supermarket. (R. 24). Officer Cosgrove tes-

tified that the customary procedure was that if any Jewel

ACNE een

‘ilies

guard had detained a person for suspected shoplifting, and

had signed a Jewel form-complaint requesting the police

to arrest, then “the arrests are made on the basis of the

Complaints.” (R. 32, para. 9, affidavit) (R. 94-R, pp. 18,

20-21, 46, Officer Cosgrove deposition). The Jewel form-

complaint was a machine copy all-purpose form, modified

by Jewel from the state court document provided to them

by the police of the 18th District. (R. 94-V, pp. 37-40) (See

App. 29).

Respondent Vaughn also deposed that this was “‘stan-

dard operating procedure’, as established by Jewel cor-

porate headquarters and the Chicago police. (R. 94-V, pp.

42-43). He deposed that the Jewel form-complaint was

used as the company’s “arrest report.” Jd. at 37-40.

Petitioner also alleged that he was unlawfully incarcer-

ated at the 18th District police station cell for an excessive

time, without being allowed his release on $100 bail. The

Seventh Circuit agreed the detention was excessive and

possibly imposed under improper motive. (App. 7). On the

detention issue, it vacated the summary judgment and re-

manded the case for further proceedings. (App. 17).

The district court, citing authorities from the Eighth and

Fifth Circuits, agreed with petitioner’s theory of the case

stating that “Courts have found state action when private

security guards act in concert with police officers or pur-

suant to customary procedures agreed to by police depart-

ments.” (App. 26). The district court ruled that since the

police in the instant case did conduct an independent in-

vestigation, that fact defeated petitioner’s Sec. 1983 ac-

tion alleging state action on the part of Jewel, and granted

respondents’ motions for summary judgment. (App. 21-27).

On appeal, the Seventh Circuit affirmed the judgment

of the district court on several issues, but it did so only

=

after agreeing with the petitioner that in fact the veri-

fied record did not show independent investigation by the

police officers. (App. 9). However, the Seventh Circuit af-

firmed the summary judgment on the issue of unlawful

arrest holding that an independent investigation was not

required to establish probable cause.

The Seventh Circuit, relying upon dicta from a 1974 Illi-

nois Appellate Court case, stated, “In Illinois the report

of an eyewitness to a crime is sufficient to authorize an

arrest.” (App. 11-12). It also added a new proposition of

law (App. 13):

“Police have reasonable grounds to believe a guard

at a supermarket. We need not say that police are

entitled to act on the complaint of an eyewitness; a

guard is not just any eyewitness.”

In this case, the verified record shows supermarket guard

Vaughn to have been a part-time-employee of Jewel for

several months prior to the petitioner’s arrest. Vaughn

testified that he had a criminal conviction record. (R. 94-V,

pp. 43-45, 55).

Using the above standards, the Seventh Circuit ruled

that this Honorable Court in Illinois v. Gates overruled

Aguilar v. Texas and Spinelli v. United States “in favor

of a lower standard of probable cause.” (App. 10-13). The

Seventh Circuit reasoned that since “The Court has never

suggested that the police, with such information in hand,

must conduct a further investigation,” there was no

reason for independent investigation in petitioner’s case.

(App. 18).

As to the credibility of the supermarket guard, the

Seventh Circuit acknowledged that the respondent officers

had not personally known the respondent Jewel guard

prior to this incident. (App. 6, 10, 13).

es

(b) Petitioner’s Encounter At The Respondent Jewel Super-

market.

The dispute in this case arose when petitioner was ac-

costed at a Jewel food store in Chicago, Illinois by respon-

dent supermarket guard Johnny Vaughn. On February 12,

1980, petitioner was shopping on the premises of the re-

spondent’s retail supermarket. While petitioner was wait-

ing in the checkout line, shortly before closing time, he

removed a People magazine from a rack located adjacent

to the checkout counter, paged through the publication,

and returned the magazine to the rack. (R. 94-V, pp.

28-29).

Petitioner paid for his purchases and was confronted by

respondent Vaughn, who did not speak or identify him-

self to the petitioner. Jd. at 36-43. From prior personal

experiences in that store petitioner believed that this per-

son was a troublemaker unrelated to the store, involved

in pilfering food, selling narcotics, or demanding money

from shoppers. Jd. at 43-44.

The petitioner requested the store cashier, who had just

handled the money transaction with the petitioner, to

summon a store manager. Jd. at 45. Vaughn, without

speaking, knocked several tubes of toothpaste off of the

store’s shelves, onto the aisle of the store, in full view

of the cashier and other shoppers waiting in the checkout

line. Id. at 51-52. Petitioner walked up to an individual

in the shopping area of the store that he believed to be

a supervisory employee and asked to speak to him. /d.

at 53. However, Vaughn would not allow petitioner to

speak to this man and announced in a loud voice that peti-

tioner was under arrest. Id. at 53.

Respondent Vaughn forcefully pushed and shoved the

petitioner into a back room security office with the assist-

~

ance of the black man the petitioner had mistaken for a

store supervisor. Jd. at 55. This individual was identified

by Vaughn only as an “off-duty Chicago police officer.”

(R. 94-P, p. 25, state court transcript). Vaughn, in the

presence of the off-duty Chicago police officer, told peti-

tioner that he just wanted to talk to him. Upon arriving

in the back room Vaughn demanded of petitioner that

“you (petitioner) better have some money or you’re going

to jail.” (R. 94-U, pp. 56-57) (R. 94-B, p. 5).

The store manager, Tinkovitch, who had witnessed the

encounter in the shopping area of the store, entered the

room and remained there throughout the confrontation in

the security office attempting to resolve the dispute. (R.

94-T, pp. 27-36) (R. 94-U, pp. 68-69). The petitioner was

searched but no store merchandise was found. (R. 94-T,

pp. 27-36, store manager’s deposition).

An unidentified Jewel Company stockboy entered the

room and placed two tubes of Gleem toothpaste and a

package of D-Zerta gelatin on the desk next to Vaughn.

Id. To settle the dispute, Vaughn then demanded that the

petitioner purchase the toothpaste and gelatin products

the stockboy had brought into the room. (R. 94-U, p. 59).

Petitioner refused respondent Vaughn’s offer, stating that

neither he nor his family used that brand of toothpaste

or the gelatin product. Jd. at 59, 64-65.

The following day, petitioner returned to the store and

spoke to store manager Tinkovitch requesting permission

to interview the cashier who waited on petitioner the pre-

vious evening, and any other store employees who wit-

nessed the events. (R. 94-B, pp. 5-6) (R. 94-U, pp. 102-04)

(R. 94-T, pp. 41-42). The store manager and security guard

personnel refused the petitioner’s request, and further re-

fused to provide him with the names of the cashier and

sae ane ee moe —

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other employees who were on duty when petitioner was

ordered arrested by the Jewel. Jd. The store manager,

in his own handwriting, signed a memorandum on a store

form stating that he was refusing petitioner’s requests

to either interview or otherwise identify persons who wit-

nessed the activity concerning petitioner’s arrest at the

Jewel store.

_ (ec) Police Failed To Speak To The Store Manager Or Other

Witnesses Concerning The Improbability Of The Super-

market Guard’s Allegations.

The store manager was never interviewed by the police.

He deposed that his observations of the dispute between

petitioner and respondent Vaughn, the supermarket guard,

showed a high probability that the merchandise that guard

Vaughn was attempting to attribute to the petitioner was

unjustified. (R. 94-T, pp. 29-32). The supermarket guard

deposed that he had brought the merchandise, which he

had accused petitioner of attempting to steal, into the

security room. (R. 94-V, pp. 85-87). The store manager

deposed that this was not true.

The verified record shows that the store manager con-

tradicted the respondent guard’s allegations. The store

manager deposed that he had observed the confrontation

between petitioner and guard Vaughn in the shopping

area of the store and specifically looked for but did not

see any merchandise, either in the petitioner’s or guard

Vaughn’s possession. (R. 94-T, pp. 17-20, 26-36). Instead,

the store manager deposed that he had heard guard

Vaughn instruct the store’s stockboys to look through the

store aisles and bring some merchandise into the securi-

ty room without identifying what items the employees

were to recover. Jd. at 35-36.

inn me

The store manager deposed that it was not unusual to

find things out of place throughout the aisles in the store,

and that he personally picked up items which had been

discarded by shoppers from the floor nearly every hour

of the day. Jd. at 30-31.

The police never interviewed the store manager, or

other witnesses who would have been material witnesses

as to the issue of probable cause to arrest. The Seventh

Circuit said that in this misdemeanor case the police “may

have exercised poor judgment” but held (App. 17):

‘“‘We conclude that the police need not automatically

interview available witnesses, on pain of the risk that

a jury will require them to pay damages. Good police

practice may require interviews, but the Constitution

does not require police to follow the best recom-

mended practices.”’

(d) The Arrest By Police.

When petitioner refused to accede to the Jewel securi-

ty guard’s demand to settle the dispute by paying ap-

proximately $3.00 to Vaughn, the security guard tele-

phoned the police by calling the “911 emergency” number.

(R. 94-P, p. 10) (R. 94-U, p. 60). Officers Cosgrove and

Schmit, the respondents in this case, were in their squad

car and received a radio call that “Jewel was holding a

shoplifter for the police” and immediately proceeded to

the supermarket. (R. 32, police affidavits).

At 11:55 p.m., minutes before the midnight closing hour,

Officers Cosgrove and Schmit entered the back room se-

curity office and found assembled the petitioner, the store

guard Vaughn, the store manager, Tinkovitch, and the off-

duty Chicago police officer. (R. 94-P, p. 25) (R. 24, para.

18) (R. 94-U, pp. 55-62).

Ea

Without any verbal accusation of theft or other crime,

Vaughn exhibited the store merchandise and told the

police that the petitioner had refused to pay or cooperate.

Id. Vaughn handed the police a copy of the Jewel all-pur-

pose criminal complaint-form maintained on a clipboard

in the Jewel security office. (R. 38) (App. 29 is an exact

copy utilized by respondents against the petitioner in this

case) (R. 94-U, pp. 68-69). In deposition, Vaughn agreed

that he did not have any conversation with the police in

the security office (R. 94-V, p. 96).

Moments later, another unidentified stockboy entered

the back room and placed a jar of baby food next to the

toothpaste and D-Zerta gelatin which a stockboy had

previously brought into the room prior to the arrival of

the police officers. (R. 94-U, pp. 61-63).

Officer Cosgrove demanded that petitioner produce his

driver’s license. Without asking petitioner any questions,

Officer Cosgrove searched the petitioner and prepared to

handcuff him. Petitioner told the police that ‘‘you can’t

do this, I want you to talk to witnesses and get my side

of the story. I am an assistant public defender, I am a

lawyer.” Id. at 66. Officer Cosgrove responded by stating

“then you know you don’t have to talk to us.” Jd. at

66-67.

Petitioner told Officer Cosgrove that (1) he wanted to

relate his version of what occurred to the police concern-

ing the encounter, and (2) he asked the police respondents

to speak to the store cashier, and other people still on

the store premises who had witnessed the events. Jd. at

66-68. Officer Cosgrove told the petitioner he would not

and immediately handcuffed the petitioner and proceeded

to take him out of the security office. (R. 94-B, p. 7, peti-

tioner’s affidavit).

=

While handcuffed, and being taken toward the exit door

of the market, petitioner asked the police if they would

get the names of the shoppers who were still in the store,

and the names of the cashier and store employees who

witnessed the events. Jd. The time was midnight and the

store was closed. (R. 94-T, pp. 39-40). The police refused

the request and took petitioner to the police car. The peti-

tioner requested that a supervisory police official be called

to the scene to assess the facts and resolve whether or

not the petitioner should be further detained. (R. 94-U,

p. 71). The police pushed and shoved the petitioner into

the rear seat of the police car and transported him to the

18th District station located four blocks from the super-

market. Jd. At the 18th District police station the re-

spondents refused to allow the petitioner to be inter-

viewed by police, detectives, or state’s attorney person-

nel concerning his version of the events. The respondent

police officers, Schmit and Heatley said that petitioner

would be incarcerated for four hours. (R. 24, para. 1, 7)

(R. 94-U, pp. 77-88) (R. 94-B, p. 11, petitioner’s affidavit).

The petitioner was placed in a jail cell until 4:15 a.m. with-

out being allowed to post $100 bond to effect his release.

(R. 94-U, pp. 73-83, 84-100).

(e) Criminal Proceedings In The State Court.

On March 24, 1980, petitioner was prosecuted on the

basis of the respondent Jewel’s all-purpose criminal com-

plaint-form. (See copy, App. 29). Following the state’s

case-in-chief, with respondent Vaughn being the only

prosecution witness to appear in court, the state trial

judge entered a finding of not guilty. (R. 94-P, p. 31).

Despite the acquittal, petitioner suffered grievous losses

in his law practice and health, as well as continued losses

to his professional and personal reputation.

=

(f) Section 1983 Complaint.

Petitioner instituted this civil rights damage action pur-

suant to 42 U.S.C. Section 1983. The complaint alleged

that respondents had acted in furtherance of a “concerted

and customary plan’ whereby Jewel (supermarket) was

illegally permitted by the 18th District Chicago police, in-

cluding the respondent police officers, to cause the arrest

and prosecution of persons whom Jewel agents designated

as shoplifters, without establishing probable cause as is

required by the fourth and fourteenth amendments to the

Constitution. (R. 24).

The complaint also alleges that the arrest and prosecu-

tion of petitioner by respondents, was without probable

cause, and based solely on the submission of a form-com- _

plaint given to them by Jewel supermarket guard Johnny *

Vaughn. (R. 24, para. 3). The respondent arresting police

officers, in their answer to petitioner’s amended complaint,

admitted that the arrest of petitioner was based solely

on the respondent supermarket’s criminal complaint. (R.

43, para. 4).

Illinois law mandates that a criminal complaint be

sworn. Jll. Rev. Stat., ch. 38, Sec. 111-3(b). Petitioner’s

amended complaint alleges that the criminal complaint

processes used against the petitioner by respondents to

arrest and prosecute him were in violation of various state

felony stetutes.

Illinois law mandates that a criminal complaint be

sworn. Ill. Rev. Stat., ch. 38, Sec. 111-3(b). The amended

complaint alleged that the respondent police officers and

Jewel engaged in a customary plan or agreement, which

if true, would subject them to felony convictions, for vio-

lating the state law in executing the criminal complaint

against the petitioner. (R. 24, Count I & II, para. 8-10,

=

13-14, Count II, para. 19-22). The Seventh Circuit agreed

that the Jewel criminal complaint was not properly sworn

and that Sgt. Heatley and Jewel falsely executed the

court document. (App. 2). The Seventh Circuit said, “We

will assume that the procedure of attesting the signature

out of the presence of the witness violates state law.”

(App. 2).

Petitioner alleged in his amended complaint that the

illegal execution of the Jewel form-complaint. and the

method by which it was used against the petitioner was

in violation of his fourth and fourteenth amendment rights;

that the filing and recording of this illegally executed

court document was violative of petitioner’s rights to due

process of law and actionable under 42 U.S.C. Sec. 1983.

REASONS FOR GRANTING THE WRIT

PETITIONER’S FOURTH AMENDMENT RIGHTS WERE

VIOLATED WHEN HE WAS ARRESTED BY THE POLICE

WITHOUT A WARRANT FOR MISDEMEANOR RETAIL

THEFT ON THE UNCORROBORATED ALLEGATIONS OF

A SUPERMARKET SECURITY GUARD WHERE THE AR-

RESTING OFFICERS DECLINED TO INTERVIEW

AVAILABLE WITNESSES, DECLINED TO INTERVIEW

THE ACCUSED, AND DECLINED TO CONDUCT ANY IN-

DEPENDENT INVESTIGATION PRIOR TO ARREST.

THE JUDGMENT OF THE SEVENTH CIRCUIT CON-

FLICTS WITH THE DECISIONS OF THIS HONORABLE

COURT, THREE OTHER FEDERAL CIRCUITS, AND THE

STATE OF ILLINOIS.

In the case at bar the Seventh Circuit created a new

standard for probable cause and a new exception to it for

="

allegations made by private security guards. The Seventh

Circuit held that probable cause to make a warrantless

arrest in a misdemeanor case was established by the un-

corroborated allegations of a supermarket guard, and that

the police were not required to interview witnesses who

were on the scene, nor to interview the accused to ob-

tain his version of the facts.

This ruling is contrary to decisions of other circuit

courts that have ruled on this issue, contrary to prior deci-

sions of the Seventh Circuit itself, contrary to decisions

of this Honorable Court, and contrary to the law of the

State of Illinois.

A. The Decision Of The Seventh Circuit Is In Conflict With

Decisions Of The Fifth, Eighth And Tenth Circuits.

The decision of the Seventh Circuit at bar is in direct

conflict with the decision of the Fifth Circuit in Duriso

v. K-Mart, 559 F.2d 1274 (5th Cir. 1977), where the court

failed to find probable cause in a similar situation. In that

case Duriso had been shopping in K-Mart, a discount mer-

chandise store. The assistant manager accused him of

leaving the store without paying for several packs of

cigarettes. The police were called. They searched Duriso

and found nothing. They then arrested him, pursuant to

a form-complaint signed by the assistant store manager,

charging him with petty theft. After his criminal charges

were dismissed, Duriso filed suit under Section 1983, and

was awarded damages by a jury. The Fifth Circuit af-

firmed, holding that the police lacked probable cause to

arrest.

In the case at bar, the police had no more information

than the police had in the Duriso case. No merchandise

was found on the petitioner’s person. A form-complaint

signed by the store security guard was the sole basis for

==

the arrest, and neither the petitioner nor any other avail-

able witnesses were interviewed by the police prior to

arrest. Under these circumstances, although the Seventh

Circuit found probable cause, it is clear that the Fifth

Circuit would not have done so under the authority of

Duriso.

Similarly, in Smith v. Brookshire, 519 F.2d 93 (5th Cir.

1975) the Fifth Circuit found no probable cause when

shoppers were arrested solely at the request of store

employees. Plaintiffs were shopping for groceries in

Brookshire Bros., a food store in Texas, when they were

accused of stealing a jar of cold cream. The police were

summoned, and they arrested the shoppers on the basis

of the store manager’s statements. The charges were later

dismissed, and the shoppers filed suit under Section 1983.

In awarding damages to the plaintiffs, the district court

held that there was no reasonable grounds to detain the

shoppers. In affirming, the circuit court stated:

“In sum, the police had detained the appellees with-

out independently establishing that there was proba-

ble cause to do so. . . . Instead, they depended on

the conclusory assessment of the store officers.”’ 519

F.2d 93, 94.

Clearly then, there is a conflict between the Fifth Cir-

cuit and the Seventh Circuit as to whether the uncorrob-

orated statement of a merchant’s employee, without more,

will suffice for probable cause.

The Tenth Circuit also disagrees with the Seventh Cir-

cuit on this issue and agrees with the Fifth Circuit. In

Lusby v. T.G.&Y. Stores, Inc., 749 F.2d 1423 (10th Cir.

1984), cert. granted and judgment vacated 106 S.Ct. 40

(1985), aff'd on remand 796 F.2d 1307 (1986). Lusby was

accused of not paying for a pair of sunglasses by a private

security guard employed by the store. The police were

SS

called, and they arrested Lusby and his brothers with-

out conducting any independent investigation to determine

whether probable cause existed. They failed to interview

any other store employees, such as the cashier, or other

witnesses in the store who might have been able to cor-

roborate or contradict the security guard’s allegations.

In an action for damages pursuant to Section 1983, the

jury found in favor of the Lusbys. In affirming, the Tenth

Circuit noted that the jury had been instructed in the ele-

ments of probable cause and therefore could conclude that

a reasonable police officer would have known he was vio-

lating Lusby’s rights. Accord, El Fundi v. Deroche, 625

F.2d 195 (8th Cir. 1980) (allegation of unlawful arrest by

police following detention by store security guards con-

stitutes facts sufficient to state a claim under Sec. 1983.

Summary dismissal was improper).

B. The Decision At Bar Is in Conflict With Prior Decisions

Of The Seventh Circuit.

In Moore v. Marketplace Restaurant, Inc., 754 F.2d

1336 (7th Cir. 1985) there was a dispute over a restaurant

bill. Six diners were arrested by the police at the request

of the restaurant owner and charged with theft. The police

were criticized by the Seventh Circuit for failing to inde-

pendently investigate the case, and for arresting the

diners without hearing their version of what occurred at

the restaurant. The district court had relied on a line of

cases which held that information supplied by a citizen

informer regarding an alleged crime was sufficient to es-

tablish probable cause. In Moore the Seventh Circuit re-

jected the applicability of those cases to this situation,

noting that those cases were all felony cases, and this was

a misdemeanor case. The court stated, ‘““‘There was neither

a threat to the officers’ safety, nor a large amount of

- e

money involved in dispute, nor any serious crime com-

mitted.” 754 F.2d 1336, 1845 (7th Cir. 1985). Therefore,

the police “could not have thought that they had to strike

swiftly to protect the public safety.” 754 F.2d 1336, 1357.

Similarly, in the case at bar, petitioner was charged

with a minor misdemeanor, the amount in dispute being

less than $4.00, and the police arrested petitioner at the

request of the supermarket guard. There was neither a

threat to the officer’s safety, nor a large amount of money

involved, nor any serious crime committed. Yet, the police

refused to allow the petitioner an opportunity to tell his

version of what occurred, nor did they interview the store

manager or other available witnesses. Clearly, under the

Moore test probable cause for arrest was not established

in the petitioner’s case.

In an earlier case, Butler v. Goldblatt Bros. Inc., 589

F.2d 323 (7th Cir. 1978) the Seventh Circuit had also

stressed the importance of independent investigation in

the determination of whether or not there was probable

cause. In Butler, an informant working as an undercover

agent for Goldblatt Bros., informed their security depart-

ment that a security guard who was to testify in court

was the subject of a murder plot. The Goldblatt security

director called the police and told them of the plot, with-

out divulging the name of the informer. On the day of

the court hearing, the subject security guard notified the

police that he had been threatened in the courtoom by

a Mr. Lewis. Lewis and his companions were arrested by

the police and held in detention for up to fifteen hours

before they were released. Lewis and his companions then

filed suit under Section 1983 and for false arrest under

state law.

In analyzing whether the police had probable cause for

the warrantless arrests, the Seventh Circuit stated,

19+

- “the officers had probable cause [if] ... at that

moment the facts and circumstances within their

knowledge and of which they had reasonable trust-

worthy information were sufficient to warrant a pru-

dent man in believing that the [Goldblatt] employees

had committed or [were] committing an offense. Beck

v. Ohio, 379 U.S. 89, 91 (1964).” 589 F.2d at 325.

The Seventh Circuit continued its analysis by stating

that the determination of probable cause would hinge on

the weight to be given the information supplied by the

informant. That weight, however, could only be deter-

mined after an assessment of the informer’s credibility

and the reliability of his information. With respect to the

reliability of information received from the informant, the

Seventh Circuit concluded,

“it is equally apparent that the officers did not have

reasonable grounds for believing the information to

be reliable, since they did not undertake an indepen-

dent investigation to corroborate the details of the

accusations . . . a reasonable man could not find that

the arrests were based upon probable cause.” 589

F.2d at 325-326.

Thus, it is clear that the decision at bar not only con-

flicts with decisions of other circuits, but even conflicts

with prior Seventh Circuit cases in its failure to require

independent investigation by the police in minor misde-

meanor cases as a prerequisite for probable cause.

C. The Decision At Bar Conflicts With Decisions Of This

Honorable Court Inasmuch As The Seventh Circuit Em-

ploys A Lower Standard Of Probable Cause To Validate

Petitioner’s Arrest.

The standard applied by this Court in determining

whether there is probable cause to arrest has traditionally

depended upon whether,

—20—

“the facts and circumstances within [the arresting

officers’] knowledge and of which they had reasonably

trustworthy information were sufficient to warrant

a prudent man in believing that the petitioner had

committed or was committing an offense.” Beck v.

Ohio, 379 U.S. 89, 91 (1964).

This test was interpreted in Aguilar v. Texas, 378 U.S.

108 (1964) and Spinelli -v. United States, 393 U.S. 410

(1969) to mean that a prudent man would determine that

he had “reasonably trustworthy information” if his inform-

ant was credible and his information reliable. In Illinois

v. Gates, 462 U.S. 213 (1983) this Honorable Court rejected

the rigid two-prong approach of Aguilar and Spinelli

which required that both the “credibility” prong of the

probable cause requirement and the “reliability” prong

be fully satisfied, in favor of a more flexible approach to

probable cause. Under the Gates approach, an assessment

may be made of both the credibility of the informant and

the reliability of the information together to determine

whether upon “the totality of the circumstances,” proba-

ble cause may be established. However, nowhere in the

opinion of this Court in Gates is there the slightest sug-

gestion that the standard of probable cause has been

lowered. Yet, in the case at bar, the Seventh Circuit

states unequivocally that Gates postulated, “a lower stan-

dard of probable cause.” (App. 18).

Although Gates may have rejected the rigid two-prong

approach of Aguilar and Spinelli, it did not obviate the

need for independent investigation by the police and cer-

roboration of an informant’s tip. Quite the contrary, Gates

is a classic example of the requirement of independent

investigation and the need for corroboration of an inform-

ant’s tip. It involved an unsigned letter to the police noti-

fying them that Mr. and Mrs. Gates were involved in nar-

cotics traffic. It described their modus operandi, includ-

—92}—

ing flights to Florida, specific motels, and other details.

In affirming the conviction in Gates, this Court noted that

the police did not simply arrest on the basis of the in-

former’s tip, but conducted a thorough and detailed in-

vestigation prior to arrest in an attempt to corroborate

the information received from the informant. Certainly,

the ruling of the Seventh Circuit at bar conflicts with the

decisions of this Court in Beck v. Ohio, supra, and Illinois

v. Gates, supra. It is in conflict with these decisions in

that it rejects the necessity for independent investigation

by the police of a supermarket guard’s uncorroborated ac-

cusation prior to a warrantless arrest for a minor misde-

meanor. It is also in conflict with these decisions when

it holds that after Gates there is ‘‘a lower standard of

probable cause.” (App. 13). See also Draper v. United

States, 358 U.S. 307 (1959) (where this Court found prob-

able cause based upon the detailed and corroborated in-

formation of a credible informer who had provided the

police with accurate information in the past).

=

D. The Seventh Circuit Decision Interpreting Illinois Law

Is In Conflict With The Decisions Of The Illinois

Supreme Court.

The Seventh Circuit, relying upon dicta from a 1974 Illi-

nois appellate court case affirmed the grant of summary

judgment in this case primarily on the following inaccurate

proposition of law (App. 11-12):

“In Illinois the report of an eyewitness to a crime

is sufficient to authorize an arrest. E.g., People v.

Foss, 18 Ill.App.3d 496, 499-500, 309 N.E.2d 677 (2d

Dist. 1974).”

People v. Foss, does not appear in any volume of Shep-

ards as cited authority for this proposition because this

is neither the law of the State of Illinois nor the holding

_

of the case. For example, in Dutton v. Roo-Mac, Inc., 100

Ill.App.3d 116, 426 N.E.2d 604 (1981), the court held that

when an arresting officer relies solely on the information

which a restaurant employee gave him in making the ar-

rest, without conducting an independent investigation, this

unlawful arrest will support a state action for false im-

prisonment.

In People v. Foss, supra, the only issue was whether

or not a person has the right to resist an illegal arrest

by police. The Foss opinion actually is authority for the

proposition that ‘a police officer may not make an arrest

unless he believes that probable cause exists, justifying

the arrest.” 309 N.E.2d at 678. People v. Foss is not

authority for the proposition relied upon by the Seventh

Circuit. (App. 11-12). In fact, Foss states the established

rule in Illinois that allows a person arrested,

“. . to inquire of the police as to the reason for

the arrest; point out the officer’s mistake; protest and

argue; but no one is allowed to impede the police ar-

rest by physical action.”

18 Ill.App.3d 496, 497, 309 N.E.2d 677, 678.

The Illinois Supreme Court recently reaffirmed the long-

standing rule that Illinois follows “the decisions of the

United States Supreme Court on identical State and Fed-

eral constitutional problems,” including the fourth amend-

ment issue of warrantless arrests and the need for proba-

ble cause stating,

“The Code of Criminal Procedure of 1963 allows a

warrantless arrest only when a peace officer ‘has rea-

sonable grounds to believe that the person is com-

mitting or has committed an offense.’ (J/l. Rev. Stat.

1983, ch. 38, par. 107-2(1)(c)). As used in the statute,

‘reasonable grounds’ is considered to have the same

substantive meaning as ‘probable cause.’ People v.

—23—

Wright, 56 Ill.2d 523, 528-29, 309 N.E.2d 537 (1974),

quoting Brinegar v. United States, 338 U.S. 160, 175-

76 (1949).”

People v. Tisler, 103 Ill.2d 226, 469 N.E.2d 147, 153, 156

(1984). The substance of the information contained on the

criminal complaint form did not contain sufficient facts to

justify the warrantless arrest of petitioner. (See App. 29).

The Illinois standard is detailed in People v. Tisler, supra,

and explained in the opinion as follows:

“In reference to Federal and State warrant require-

ments, this court has explained that a detached judi-

cial officer must resolve the question of whether

probable cause exists to justify issuing a warrant.

The decision is to be based on information contained

in sworn statements or affidavits that are presented

to the magistrate [citations]. Whether probable cause

exists in a particular case turns on the ‘totality of

the circumstances and the facts known to the offi-

cers and court when the warrant is applied for.’ ”

Tisler, 469 N.E.2d 147, 152. Inasmuch as the arresting

officers admitted in their answer to petitioner’s amended

complaint, and their affidavits as filed in the district court,

that the arrest of petitioner was based solely on the Jewel

store’s complaint form, it is obvious the information as

contained in that document does not meet the state or

federal standards for probable cause. (R. 48, para. 10,

police answer to petitioner’s amended complaint) (R. 94-R,

pp. 40-42, Cosgrove’s deposition) (R. 32, para. 9, police

affidavit, ‘‘the arrests are made on the basis of the Com-

plaints.””) (See App. 29, reproduced copy of the Jewel crim-

inal complaint used in this case). The Illinois Supreme

Court has made it clear that when a police officer acts

as his own magistrate in effecting a warrantless arrest

“the probable cause standard is at least as stringent as

those that guide a magistrate in deciding whether or not

to issue a warrant.” Tisler, supra, 469 N.E.2d 147, 153.

ollie

The Illinois Supreme Court approved the “totality-of-cir-

cumstances standard” mandated by this Honorable Court,

ruling that ‘‘we adopt the Gates standard for resolving

probable cause questions under the Illinois Constitution

that involve an informant’s tip.” Tisler, 469 N.E.2d at 157.

The Seventh Circuit erred in attributing to the State of

Illinois the proposition that “In Illinois the report of an

eyewitness to a crime is sufficient to authorize an arrest.”

(App. 11-12). The Seventh Circuit admitted that this Honor-

able Court “had not spoken on the question” and has im-

properly used the erroneous proposition as a rule of law

in petitioner’s case to justify probable cause to arrest.

(App. 11-13).

II.

JEWEL’S ILLEGAL UTILIZATION OF THE CRIMINAL

COMPLAINT AND THE CUSTOMARY PLAN OR AGREE-

MENT WITH THE POLICE MADE JEWEL A STATE

ACTOR LIABLE UNDER SECTION 1983.

Any one of the following “special accommodations”

would clearly indicate the joint participation between the

police and the personnel of Jewel in state action. The

cumulative effect of all of them is to establish without

question the existence of a customary plan or agreement

whereby Jewel exercised the prerogatives and power of

the state.

A. Jewel’s Illegal Utilization Of The Criminal Complaint

And Its Filing The Frauduient Document In The State

Court Creates Section 1983 Liability.

The Seventh Circuit properly found that the respondents

in this case violated state law because of the procedure

which both Jewel and the police used in attesting to the

signature in the affidavit portion of the complaint. (App.

2-3). However, the Seventh Circuit incorrectly concludes

allies

this violation of state criminal law to be of no federal con-

stitutional significance. (App. 3-4).

The Seventh Circuit has ignored the various Supreme

and federal circuit court cases holding that the placing

of signatures on local city and state forms, without the

formality required by law, is in violation of the criminal

and civil provisions of the federal civil rights act.

In Carrasco v. Klein, 381 F.Supp. 782 (E.D. N.Y. 1974),

the defendants had violated Sec. 1983 by falsely claiming

in a civil case that the affidavit, as filed, had in fact been

sworn to before filing the document in the court system.

The respondents in the case at bar are similarly liable

for falsely stating that the criminal complaint was executed

in conformity with the requirements of law. The respond-

ents’ motions for summary judgment should have been

denied in the case at bar, as it was in Carrasco, 381

F.Supp. at 785. Accord Delatte v. Genovese, 273 F.Supp.

654 (E.D. La. 1967) (Sec. 1983 violation when public em-

ployee violates his duties under state statute and is the

ultimate cause of plaintiff's commitment).

!

An example of private persons placing signatures on

local government court forms, resulting in violations of

the federal civil rights act, occurred in United States v.

Wiseman, 445 F.2d 792 (2d Cir. 1971). In Wiseman, the

two criminally accused defendants merely placed their sig-

natures on a form entitled affidavit of service and filed

them in the civil clerk’s office in New York City. These

two persons were both convicted of violation of the crimi-

nal aspects of civil rights under 18 U.S.C. Sections 2 and

242, which carry essentially the same language of Sec.

1983. Wiseman illustrates that a falsely executed affidavit

violates the “under color of’ clause of Sec. 1983, mandat-

ing a finding of state action. 445 F.2d at 794.

In Lugar v. Edmonson, 457 U.S. 922 (1982), this Honor-

able court said that the defendants’ utilization of State

court processes, through misuse by a private person, is

subject to constitutional restraints and may properly be

addressed in a Sec. 1983 action. 73 L.Ed.2d at 498. Lugar

teaches that to act “under color” of law does not require

that Jewel, in the case at bar, be an officer of the State.

B. Evidence Of A Customary Plan To Have Police Arrest

Anyone Jewel Wanted Arrested.

The Seventh Circuit correctly stated the ieitliastte law

creating state action, “if the police promise to arrest any-

one the shopkeeper designates, then the shopkeeper is ex-

ercising the state’s function and is treated as if he were

the state.” (App. 5). The verified record in this case is

replete with admissions from both the police and the

Jewel respondents that the police would arrest anyone the

Jewel wanted arrested. (R. 94-R, pp. 13-21, 46) (R. 32,

para. 9-11, affidavit of Officer Cosgrove) (R. 94-V, pp.

39-43) (R. 48, para. 10, police answer to petitioner’s

amended complaint). For example, this is illustrated in the

record as follows (R. 94-R, pp. 20-21):

Q. (Plaintiff's Counsel): Now, with respect to the

complaint that would have already been filled out,

what would have been the normal course of business

that you would have followed? You are at the Jewel,

the Jewel person is in the security room and the

security guard is there, you got the complaint filled

out. i your experience, what would have happened

next!

A. Can you repeat that, please?

Q. Sure. (Question read back as requested)

A. Well, if the Jewel wanted the individual ar-

rested, we would arrest him.

Q. They would be arrested; right?

A. Sure.

Q. What would happen then?

A. We would take them to the station and process

them. :

. —27—

The Seventh Circuit properly states that a private party

comes within Sec. 1983 only when “he is a willful partici-

pant in joint action with the State or its agents... .”

(App. 5). The Seventh Circuit correctly states that shop-

keepers are engaged in state action when they strike a

deal with the police under which the police simply carry

out the shopkeepers’ directions. If the police promise to

arrest anyone the shopkeeper designates, then the shop-

keeper is exercising the state’s function and is treated

as if he were the state. (App. 5).

The Seventh Circuit said that this principle is the basis

for the finding of state action in various cases including

Duriso v. K-Mart, 559 F.2d 1274 (5th Cir. 1977); Smith

v. Brookshire Bros., 519 F.2d 93 (5th Cir. 1975); Moore

v. Marketplace Restaurant, 754 F.2d 1336 (7th Cir. 1985),

and many other cases. (App. 5).

The Seventh Circuit incorrectly states that every wit-

ness in deposition stated that there was no agreement,

and the police exercised independent judgment. (App. 7).

The Seventh Circuit is also incorrect in stating that each

witness “denied that there was any arrangement, plan or

scheme under which the police would arrest anyone Jewel

wanted arrested.” (App. 6). Contrary to the Seventh Cir-

cuit’s assertions, the record in this case shows that peti-

tioner did in fact present evidence, through the deposi-

tion testimony of the respondents themselves, that the

police had arrested anyone Vaughn and other Jewel secu-

rity agents designated for arrest in the past. (R. 94-V,

pp. 42-43) (R. 94-R, Officer Cosgrove Deposition, pp. 18,

20-21, 46).

Further, the Seventh Circuit incorrectly characterizes

the police arrest process at the Jewel by stating, “If the

guard thought the evidence strong, then the police had

to decide what to do.” (App. 7). This is contrary to the

—28—

record in this case. The deposition testimony of Jewel and

the police shows that whenever Jewel’s guard wanted a

person arrested, the 18th District police would arrest. (R.

94-V, pp. 42-43) (R. 94-R, pp. 20-21) (R. 32, para. 9).

The totality of the evidence, in the record of the instant

case, demonstrates the essentials of the basic plan, with

the keynote expressed by Officer Cosgrove in deposition:

“Well, if the Jewel wanted the individual [detained] ar-

rested, we would arrest him.” (R. 94-R, pp. 18, 20-21, 46).

C. Jewel Used The Threat Of Arrest As A “Bargaining

Chip’ To Have Petitioner Accede To Their Demands.

Instead of investigating the dispute between the Jewel

security guard and the petitioner, the police testified that

they assisted Jewel in using the threat of arrest to coerce

the petitioner to accede to the security guard’s demands

that the petitioner pay for the merchandise in dispute.

This is shown in the verified record:

Q. (Stamos, Petitioner’s Counsel): . . . What hap-

pened next on that scene?

A. (Officer Cosgrove): Well, we inquired to what

they wanted done here, how they wanted us to handle

the situation.

Q. That’s Jewel?

A. Right.

Q. And what did they tell you?

A. They said they wanted Mr. Gramenos to pay

for the articles. He said he wasn’t going to pay for

anything. They said, well, we want him arrested.

Q. So, in your presence, it’s your recollection that

Gramenos was asked to pay for the articles as a mat-

ter of resolving the dispute?

A. Right.

(R. 94-R, pp. 40-41).

i iccenenemnieeaamamniamaemaiidl

~29—

Officer Cosgrove’s own testimony conclusively shows

that the police relied upon the Jewel security guard to

tell them what to do. Jd. at 18. The police followed a

policy that allowed Jewel’s security guards to substitute

their judgment for that of the police. Such cooperative

activity between the police and Jewel is sufficient to make

Jewel a party acting under color of state law. E.g., Lusby

v. T.G.&Y. Stores, supra; Classon v. Shopko Stores, Inc.,

435 F.Supp. 1186 (E.D. Wis. 1977); Duriso v. K-Mart,

supra; El Fundi v. Deroche, Manager Target Store, 625

F.2d 195, 196 (1980); Moore v. Marketplace Restaurant,

Inc., supra.

Officer Cosgrove testified to a different procedure he

would follow in non-merchant cases. (R. 94-R, pp. 13-21).

He deposed that in misdemeanor cases, other than mer-

chant cases, whenever any person was accused of a crime,

which was not witnessed by the police, Cosgrove would

conduct an independent investigation. The process that

he would follow in non-merchant cases would include talk-

ing to the accused and conducting an interview to deter-

mine the accused’s version of the incident. (R. 94-R, pp.

13-21). This is essentially the investigative technique man-

dated by the Seventh Circuit in minor misdemeanor cases.

See Moore v. Marketplace Restaurant, oupre. It was not

done in the case at bar.

Unlike the investigative techniques, as outlined above,

Officer Cosgrove testified that in Jewel shoplifting allega-

tions, ““When the police are called in, arrests are made

on the basis of the Complaints.” (R. 32, para. 9, affidavit

of Officer Cosgrove, April 1981). In this case, it is evi-

dent that the police substituted the judgment of a private

corporation for their own official state authority.

Since the police did not independently investigate the

Jewel security guard’s allegations of a misdemeanor of-

=

fense, as a matter of police and Jewel standard operating

procedure, this left Jewel with the authority to Lring its

own criminal charges. Thus, Jewe! exercised a Scate in-

quisitorial right. This same activity was held violative of

Sec. 1983 in Lusby v. T.G.&Y. Stores, Inc., 749 F.2d 1423

(10th Cir. 1984), vacated in part 106 S.Ct. 40 (1985), aff'd

on remand 796 F.2d 1307 (1986), and the store was held

to be acting under color of state law. 749 F.2d at 1433.

CONCLUSION

In conclusion, there are few more horrifying experiences

than that of being suddenly snatched from a peaceful and

orderly existence and placed in the helpless position of

having one’s liberty restrained, under the accusation of

a crime. Society’s pervasive and strong interest in pre-

venting and redressing attacks upon reputation is noted

in Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). For the

various reasons presented herein, this petition for cer-

tiorari should be granted.

Respectfully submitted,

JAMES A. STAMOS

900 W. Jackson Boulevard

Suite 4-E

Chicago, Illinois 60607

(312) 666-7766

Counsel of Record

JAMES N. GRAMENOS

6743 N. LaPorte Avenue

Lincolnwood, Illinois 60646

(312) 677-7261

Pro Se

APPENDIX

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INDEX TO APPENDIX

Opinion and Judgment of the United States Court

of Appeals for the Seventh Circuit, July 25,

EEE EL is

Order of the United States Court of Appeals for

the Seventh Circuit Denying Rehearing, August

EE DE ESOT

Order of the United States District Court for the

Northern District of Illinois Granting Defen-

dants’ Motion for Summary Judgment and Adopt-

ing the Report and Recommendation of the

Magistrate, September 11, 1985 ...........

Report and Recommendation of the Magistrate,

I RS

PAGE

21

29

App. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 85-2767

JAMES N. GRAMENOS,

Plaintiff-Appellant,

Vv.

JEWEL COMPANIES, INC., et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 81 C 709—John A. Nordberg, Judge.

ARGUED MAY 14, 1986—DECIDED JULY 25, 1986

Before POSNER and EASTERBROOK, Circuit Judges, and

CAMPBELL, Senior District Judge.*

EASTERBROOK, Circuit Judge. Johnny Vaughn, a security

guard at a Jewel supermarket, stopped James Gramenos,

a customer, at 11:30 p.m. as he was leaving the store.

Gramenos remonstrated with Vaughn and then ran through

the store. Vaughn caught him and held him in an office

until Joseph Schmit and Frank Cosgrove, officers of the

Chicago police, arrived. Vaughn accused Gramenos of

* Hon. William J. Campbell, of the Northern District of Illinois,

sitting by designation.

App. 2

scatter during his dash through the aisles. Gramenos

denied stealing the items, stating that he first had taken

was a guard, had gone in search of the store’s manager

to complain about Vaughn’s behavior. Vaughn signed a

complaint. The police arrested Gramenos, who protested:

“You can’t do this. I want to talk to witnesses and get

my side of the story. I am a lawyer. I am a public de-

fender.” (One patron in the store recalls that Gramenos

kept saying: “You can’t arrest me, I’m a lawyer.’’) The

police let him go at 4:15 a.m. after he posted a $100 bond.

Gramenos was prosecuted and acquitted. Vaughn was

the only witness for the State, and at the end of Vaughn’s

testimony the judge stated: “I think on all things I think

there is a misunderstanding. I have a doubt. Finding of

not guilty.” Gramenos then turned the tables, filing this

suit under 42 U.S.C. §1983 against the supermarket,

Vaughn, the two arresting officers, and Set. Frank Heatley,

the desk officer at the police station at which Gramenos

was held. After discovery had been completed, the defen-

dants moved for summary judgment. A magistrate recom-

mended that the district judge grant the motion; the judge

did so, adopting the magistrate’s short opinion.

I

Illinois law requires that a criminal complaint be sworn.

Ill. Rev. Stat. 38 §111-3(b), Vaughn’s complaint was not

a suit under §1983 the plaintiff must show a violation of

the Constitution or laws of the United States, not just

App. 3

a violation of state law. The two are not the same. E.g.,

Carson v. Block, 790 F.2d 562, 565 (7th Cir. 1986) (col-

lecting cases); McKinney v. George, 726 F.2d 1183, 1188-89

(7th Cir. 1984) (holding that a warrantless arrest on proba-

ble cause does not violate the fourth amendment even if

state law required the police to have prior authorization).

No principle of federal law makes a properly attested com-

plaint necessary to an arrest or a criminal prosecution.

Police often arrest suspects on the basis of orai reports

from witnesses, and the state may prosecute against the

wishes of all witnesses.

Gramenos states that: “The failure to file a valid com-

plaint, in of [sic] itself, establishes a violation of §1983 [sic].

Duriso v. K-Mart, 559 F.2d 1274 (5th Cir. 1977); Smith

vy. Brookshire Bros., 519 F.2d 93 (5th Cir. 1975).”’ Neither

case says anything like this. The complaint in Smith was

irregular, but the violation of the Constitution was that

the police arrested a suspect without either a valid com-

plaint (the witness signed a blank piece of paper) or any

knowledge of the facts. As the court put it, the pctice

“depended on the conclusory assessment of the store offi-

cers. These store managers, in turn, did not have proba-

ble cause for believing that McClure was a shoplifter and

that Smith was an accomplice.” 519 F.2d at 94. In Duriso

the complaint was properly signed, and it was this com-

plaint that furnished the basis for concluding that the com-

plaining witness knowingly made a false charge under

color of state law. 559 F.2d at 1277-78. In both Smith and

Duriso the constitutional problem was the lack of probable

cause to make an arrest. Moore v. Marketplace Restau-

rant, Inc., 754 F.2d 1336, 1349 (7th. Cir. 1985), on which

Gramenos relies for assistance on every other issue in the

case, states: “this court once again notes that an alleged

violation of a state statute does not give rise to a cor-

responding §1983 violation, unless the right encompassed

in the state statute is guaranteed under the United States

Constitution.” Gramenos does not even try to explain how

his position can be reconciled with Moore.

App. 4

Gramenos insists, however, that the Supreme Court has

held that violations of state law also violate the Constitu-

tion. The brief cites Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982), and Davis v. Scherer, 468 U.S. 188 (1984). The

question in Harlow was one of immunity, and the Court

said that officials are immune from liability in damages

for the violation “insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” 457 U.S.

at 818. A rule that a clear violation of statute will remove

an immunity—because the statute gives notice of the con-

duct required, so that the defendant cannot say that the

norm took him by surprise—is a far ery from saying that

the violation of a statute is itself a violation of the Con-

stitution. Davis then holds that violations of statutes

generally do not dissipate immunity, stating: “Officials

sued for constitutional violations do not lose their qualified

immunity merely because their conduct violates some stat-

utory or administrative provision.” 468 U.S. at 194. A

footnote continues: “Neither federal nor state officials lose

their immunity by violating the clear command of a stat-

ute or regulation—of federal or of state law—unless that

statute or regulation provides the basis for the cause of

action sued upon.” 468 U.S. at 194 n.12: The statute in-

volved in this case is not a statute of the United States,

the violation of which would be actionable under §1983.

II

Gramenos accuses Jewel, Vaughn, and the police of con-

spiring to deprive him of his constitutional rights. There

are two problems. One, which applies to all defendants,

is that the claim assumes a deprivation of rights—an ar-

rest that is unreasonable within the meaning of the fourth

amendment, now applicable to the states through the four-

teenth. If the arrest was constitutionally unreasonable,

then the police are liable under §1983 without regard to

the “conspiracy”, and if not, not. We defer to Part IV

the discussion whether the arrest was supported by proba-

ble cause. The other problem, which applies to Jewel and

llc il i

App. 5

Vaughn, is that the Constitution applies only to govern-

mental actors. Gramenos does not contend that one who

accuses someone else of a crime is exercising the powers

of the state. A private party comes within §1983 only

when “he is a willful participant in joint action with the

State or its agents. . . . Of course, merely resorting to

the courts and being on the winning side of a lawsuit does

not make a party a co-conspirator or a joint actor with

the [state].” Dennis v. Sparks, 449 U.S. 24, 28 (1980).

Although private parties call on the aid of state law

“without the grounds to do so”, when the private deci-

sion may “in no way be attributed to a state rule or a

state decision” (Lugar v. Edmondson Oil Co., 457 U.S.

922, 940 (1982)), the private parties are not state actors.

There must be a conspiracy, an agreement on a joint

course of action in which the private party and the state

have a common goal. Adickes v. S.H. Kress & Co., 398

U.S. 144 (1970).

Adickes, the last in a line of cases in which restau-

rateurs and others used the trespass or vagrancy laws

to enforce racial segregation long after it became clear

that the state may not discriminate on account of race,

has become the basis for a rule that shopkeepers are

engaged in “state action” when they strike a deal with

the police under which the police simply carry out the

shopkeepers’ directions. If the police promise to arrest

anyone the shopkeeper designates, then the shopkeeper

is exercising the state’s function and is treated as if he

were the state. This approach is the basis for the finding

of state action in Duriso and Smith and, among many

other cases, Moore v. Marketplace Restaurant, 754 F.2d

at 1352-53; Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423

(10th Cir. 1984), vacated in part, 106 S. Ct. 40 (1985); and

Davis v. Carson Pirie Scott & Co., 530 F. Supp. 799 (N.D.

Ill. 1982). But if the shopkeeper is operating independent-

ly, his conduct is judged under the state tort law (false

arrest, malicious prosecution, slander, and the like) rather

than the fourth amendment. Cf. Blum v. Yaretsky, 457

U.S. 991 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149

App. 6

(1978). The parties agree on these principles but disagree

about their application to this case.

Gramenos took the deposition of every significant ac-

tor in the case. Each denied that there was any arrange-

ment, plan, or scheme under which the police would ar-

rest anyone Jewel wanted arrested. Gramenos did not pre-

sent any evidence to pierce these denials—such as evi-

dence that the police have arrested everyone Jewel wanted

arrested in the past. The police stated that they had not

arrested anyone at Vaughn’s request before, so it is not

possible to conclude that Vaughn had struck his own bar-

gain with them. A party may not cry “conspiracy” and

throw himself on the jury’s mercy. Even if the jury should

disbelieve all the denials, this would leave Gramenos with

no evidence. There must be a genuine dispute about a

material fact. Anderson v. Liberty Lobby, Inc., 54 L.W.

4755, 4758-60 (U.S. June 25, 1986). A jury in this case

could come out only one way.

There are three bits of evidence on which Gramenos

seizes. First, Jewel kept printed complaint forms in its

stores. Its employees filled these out when they caught

shoplifters. Second, the “Chief of Loss Prevention” of

Jewel stated that Jewel left its guards with full discre-

tion to decide when to let a suspect go and when to “lock

him up.” Third, officer Cosgrove stated that “if the Jewel

wanted the individual arrested, we would arrest him.”

The supermarket’s use of preprinted forms does not show

that the police and Jewel entered into a plan of any kind.

The store keeps the forms for its own convenience. Shop-

lifting is common; it makes sense for a store to have a

stock of forms whether or not the store has an agree-

ment with the police. The two statements, read in con-

text, do not show that Jewel and the police had a stand-

ing arrangement; the chief of loss prevention, like officer

Cosgrove and everyone else, denied it. The point of each

statement was that the guard in the store had discretion

to decide whether to let the suspect go or press charges.

If the guard thought the evidence weak, neither Jewel’s

management nor the police would question a decision to

App. 7

drop things then and there. If the guard thought the evi-

dence strong, then the police had to decide what to do.

A party cannot resist summary judgment by pointing to

snippets of depositions when the point of every witness’s

statement was that there was no agreement, and the

police exercised independent judgment. They may have

exercised poor judgment (a subject to which we return),

but they exercised judgment. Plausible inferences must

be resolved in favor of the party opposing summary judg-

ment, but the inferences Gramenos presses 9n us are not

plausible. A verdict by the jury for Gramenos would have

to be set aside. The evidence of conspiracy here is weaker

than the evidence in Moore, 754 F.2d at 1352-53, a case

in which the defendants received summary judgment.

Ill

The police held Gramenos between 11:55 p.m., when

they left the store, and 4:15 a.m., when they allowed him

to post $100 and go. They did not take him before a

magistrate. He seeks compensation for what he says is

excessive detention. The magistrate did not discuss this

claim, and the police respond to it only by pointing out

that they need to do a lot of things after an arrest—take

fingerprints and mug shots, check for outstanding war-

rants, fill out countless forms. One difficulty is that none

of the evidence in this case quantifies the amount of time

it would take reasonably diligent officers to complete these

tasks. Another is that there is some evidence that the

police held Gramenos out of spite—or perhaps to impose

the real punishment for shoplifting, see Malcolm M. Feeley,

The Process is the Punishment (1979)—rather than out

of a need to complete essential tasks. When Gramenos

arrived at the stationhouse he asked to de released on

bond. He states that officer Schmit replied: “Counsel, we

are going to keep you here for four hours.”’

“{A] policeman’s on-the-scene assessment of probable

cause provides legal justification for a a person

suspected of crime, and for a brief period of detention

App. 8

to take the administrative steps incident to arvest.” Ger-

stein v. Pugh, 420 U.S. 108, 113-14 (1975). When the “ad-

ministrative steps” have been completed, the police must

take the suspect before a magistrate to establish probable

cause, or they must let him go. The Court has never said

how long the “brief period” may be. The American Law

Institute thinks that two hours are enough. Model Code

of Pre-Arraignment Procedure §130.2(1) (1975). We held

in Moore, 754 F.2d at 1350-52, that four hours requires

explanation. This case is in essentially the same posture

as Moore: an unexplained four hours of detention in the

dead of night. It must be remanded for further proceed-

ings. :

It is premature to say how long is too long under the

fourth amendment. On remand the police should explain

what must be done after an arrest for shoplifting and why

reasonably diligent officers need more than four hours to

do it. The court also should determine whether four hours

is an acceptable period for a non-violent misdemeanor. If

the police choose to perform time-consuming tasks after

an arrest, perhaps they must do so on their own time

rather than the suspect’s, issuing a citation rather than

keeping the suspect locked up in the interim.

IV

Whether summary judgment is proper on the question

whether the police were entitled to arrest Gramenos is

the most difficult issue in the case. When Schmit and

Cosgrove arrived at the store, Vaughn told them that he

had seen Gramenos put items in his pocket, through

the checkout line (paying for other items), and try to leave

the store. Vaughn intercepted Gramenos on his way out,

and, according to Vaughn, Gramenos then took off through

the aisles, emptying his pockets. Vaughn displayed the

items to the officers, saying that he and a stockboy had

collected them. Gramenos conceded touring the aisles at

a good clip (he says it was a fast walk) but denied re-

moving things from his pockets or having anything that

App. 9

needed to be removed. Gramenos states that at this point

the police took him into custody, believing Vaughn’s story

over his. This is not probable cause, Gramenos asserts,

because the police bypassed an opportunity to interview

re a and shoppers to determine who was telling

the truth.

In depositions the police stated that they had inter-

viewed the stockboy and two customers, who corroborated

Vaughn’s tale. Two shoppers also gave depositions, each

stating that he had talked with the police and had seen

Gramenos do suspicious things. The magistrate stated that

‘Gt is uncontradicted that the officers did independently

interview and investigate the facts” and concluded, on this

ground, that they had probable cause. This is not correct;

Gramenos contradicts the officers’ claim that they inter-

viewed other witnesses. Although Gramenos was under

restraint and therefore could not observe everything the

police did, he offered some reasons that might lead a jury

to conclude that the other shoppers had mistaken his ar-

rest for that of some other person. The arrest report the

officers filled out at the time does not mention witnesses

other than Vaughn. Affidavits filed by the officers also

state that the arrest was made on Vaughn’s complaint

and omit mention of other witnesses. And each of the two

shoppers’ descriptions of the arrest differs from what

Gramenos and Vaughn agree occurred. One shopper, for

example, said that he saw a white security guard escort

Gramenos to an office and remove merchandise from his

pocket; later the police took Gramenos away on a paddy

wagon. Vaughn is black; no one else thinks that Gramenos

had merchandise in his pocket when he reached the office;

the merchandise this shopper recalls is not the kind

Gramenos is accused of stealing; and the police left in a

cruiser, not a paddy wagon. The second shopper stated

that at the time she saw Gramenos in the Jewel store

she was pregnant with her first child; the date on which

she gave birth precludes her pregnancy at the time

Gramenos was arrested. Now a jury might believe that

this shopper was mistaken about her pregnancy rather

App. 10

than her observation of the incident, as a jury might

believe that the first shopper saw the incident but had

trouble remembering the details. Eyewitness descriptions

are notoriously full of inaccuracies. Elizabeth F. Loftus,

Eyewitness Testimony: Psychological Research and Legal

Thought, 3 Crime and Justice: An Annual Review of

Research 105 (1981). These are not the sort of issues that

may be resolved on summary judgment, however.

We therefore take only the facts on which there is no

genuine dispute. Vaughn, a store guard, told the police

that he saw Gramenos put items in his pocket and try

to leave the store with them, and that Gramenos ran wild-

ly through the aisles scattering food after being con-

fronted. Vaughn filled out a criminal complaint and signed

it in the presence of the two officers. Gramenos denied

everything (except walking quickly through the aisles).

The police interviewed no one else and took Gramenos

away. Did they have probable cause?

Two of our recent cases hold that the existence of

probable cause is a question for the jury in a damages

suit “if there is room for a difference of opinion.” Llaguno

v. Mingey, 763 F.2d 1560, 1565 (7th Cir. 1985) (en b..nc);

Moore, 754 F.2d at 1344-47. Probable cause can be a mat-

ter of degree, varying with both the need for prompt ac-

tion and the quality of the information at hand. Illinois

v. Gates, 462 U.S. 213, 235, 238-39 (1983); Llaguno, 763

F.2d 1564-66. There are many formulae for “probable

cause” or “reasonable suspicion” but all speak of the exer-

cise of judgment, of decisions “turning on the assessment

of probabilities in particular factual contexts—not read-

ily, or even usefully, reduced to a neat set of legal rules.”

Gates, 462 U.S. at 232. This certainly sounds like the ter-

ritory of the jury, viagtlag | that body to determine proba-

ble cause and calling on the officer to pay damages unless

he makes out a defense of immunity, perhaps under the

rubric “probable cause to believe there was probable

cause.” See Malley v. Briggs, 106 S. Ct. 1092, 1098 (1986).

Yet we hesitate to conclude that 195 years after the

fourth amendment was added to the Constitution there

App. 11

must be a jury trial every time the police arrest a per-

son accused by a store guard who says he saw the person

shoplifting, a trial in which the jury will decide w ether

the police used the right investigative techniques. Each

jury will have its own view of appropriate investigation,

and the burden of trials will be a substantial tax on police

for the privilege of doing their already difficult jobs.

Llaguno and Moore were unusual cases, and they do not

establish that every ony defendant is entitled to a

trial on whether he should have been arrested. See

Williams v. Kobel, supra. Both Llaguno and Moore in-

volved warrantless entries into dwellings looking for

suspects. The search in Moore was late at night, and the

police lacked good information that a crime had been com-

mitted. There had been a dispute about the size of a bill

in a restaurant, and whether this was a theft of service

or a contract dispute was hard to tell. A jury might con-

clude that a nighttime arrest for an incident that may not

have been a crime was unreasonable—and ‘“‘reasonable-

ness” is the central command of the fourth amendment.

More generally, Llaguno and Moore merge the concepts

of probable cause and reasonableness. This is sometimes

inevitable, given the flexible quality of probable cause

(which is less than a rule of more-likely-than-not, but how

much less depends on the circumstances). See Albert W.

Alschuler, Bright Line Fever and the Fourth Amendment,

45 U. Pitt. L. Rev. 227, 236-41, 243-56 (1984). The ques-

tion is not always open-ended, however, and it may be

possible to have an understandable definition of probable

cause even though “reasonableness” remains as a separate

issue. We think a separation is useful here, when the

question concerns the sufficiency of the evidence to make

an arrest in a public place. See United States v. Watson,

423 U.S. 411 (1976).

Vaughn was an eyewitness. The facts he related to the

police (if he told the truth) establish a crime. Vaughn said

that Gramenos had passed the checkout counter and was

about to leave the store. Gramenos’s identity was not in

dispute. In Illinois the report of an eyewitness to a crime

App. 12

is sufficient to authorize an arrest. E.g., People v. Foss,

18 Ill. App. 3d 496, 499-500, 309 N.E.2d 677 (2d Dist.

1974). The Supreme Court has not spoken on the ques-

tion, but the formulae for probable cause, such as “a

probability or substantial chance of criminal activity, not

an actual showing of such activity”, Gates, 462 U.S. at

244 n.13, quoted in New York v. P.J. Video, Inc., 106 S.

Ct. 1610, 1616 (1986), or “facts and circumstances known

to the officer [that] warrant a prudent man in believing

that an offense has been committed”, Henry v. United

States, 361 U.S. 98, 102 (1959), do not suggest that an

officer risks his career and his fortune by believing an

apparently sober eyewitness to a crime. A “prudent” offi-

cer may balk if the person claiming to be an eyewitness

strolls into the police station and describes a crime from

long ago, or if the person leveling the accusation is

babbling or inconsistent. When an officer has “received

his information from some person—normally the putative

victim or an eye witness—who it seems reasonable to be-

lieve is telling the truth”, Daniels v. United States, 393

F.2d 359, 361 (D.C. Cir. 1968), he has probable cause.

Probable cause does not depend on the witness turning

out to have been right; it’s what the police know, not

whether they know the truth, that matters. For exam-

ple, McKinney v. George, 726 F.2d 1183 (7th Cir. 1984),

eld that a witness’s complaint established probable cause

as a matter of law, making a trial unnecessary. As the

Eighth Circuit remarked in finding probable cause despite

an officer’s failure to conduct an investigation (even to

look at the bill said to be counterfeit): “There is no con-

stitutional or statutory requirement that before an arrest

can be made the police must conduct a trial.” Morrison

v. United States, 491 F.2d 344, 346 (8th Cir. 1974). “A

policeman’s lot is not so unhappy that he must choose be-

tween being charged with dereliction of duty if he does

not arrest when he has probable cause, and being mulcted

in damages if he does.” Pierson v. Ray, 386 U.S. 547,

555 (1967). See also 1 Wayne R. LaFave, Search and

Seizure §3.2 (1978).

App. 13

Police have reasonable grounds to believe a guard at

a supermarket. We need not say that police always are

entitled to act on the complaint of an eyewitness; a guard

is not just any eyewitness. The chance that the complain-

ant is pursuing a grudge, a risk in believing an unknown

witness, is small in an institutional setting. The guard who

pursues a private agenda may be fired and disgraced;

there are automatic penalties that the police are entitled

to consider. Cf. Model Code of Pre-Arraignment Pro-

cedure at 297-303. The store will insist that guards err

on the side of caution. It does not want to embarrass and

anger an honest customer—not only because this is bad

for business but also because a false charge of crime may

lead to costly tort litigation under state law. Jewel Com-

panies is not judgment-proof; its self-interest protects

shop from unsubstantiated charges, and the police are

entitled to consider this, too. The question is whether they

have reasonable grounds on which to act, not whether it

was reasonable to conduct a further investigation. Cf.

United States v. Edwards, 415 U.S. 800, 807 (1974).

Some el rules suggest that one reliable eyewitness

is enough. Even before Gates, a single tipster could supply

probable cause to issue a search or arrest warrant, if the

lice had reason to think that the informant had first-

d knowledge and was reliable. See Aguilar v. Texas,

378 U.S. 108 (1964); Spinelli v. United States, 393 U.S.

410 (1969); both overruled (in favor of a lower standard

of probable cause) by Gates. The opinions in Aguilar and

pny take it as a point of departure that the report

of one identified, reliable eyewitness creates probable

cause. The Court has never suggested that the police,

with such information in hand, must conduct a further in-

vestigation or put contradictory evidence into the affidavit.

Cf. nks v. Delaware, 438 U.S. 154 (1978), holding that

if an affidavit is sufficient on its face the defendant may

not try to undercut the finding of probable cause by intro-

ducing other facts that the police left out, indeed that he

may not even controvert the facts in the affidavit, unless

he first shows that the author of the affidavit knew them

App. 14

to be vntrue and that without these facts the affidavit

would not establish probable cause.

Just as a single eyewitness’s statement—without further

investigation or a narration of contrary evidence—can sup-

port a warrant, so a single eyewitness’s statement can

support an indictment and a conviction. If the state had

chosen to indict Gramenos, it could have done so on the

basis of Vaughn’s testimony without offering Gramenos

any opportunity to rebut the testimony and without tell-

ing the grand jury anything more. And if the judge at

trial had chosen to believe Vaughn over Gramenos, that

would have been sufficient to support a conviction ‘“be-

yond a reasonable doubt.” It would be passing strange

if the evidence sufficient to establish guilt at trial were

not enough to make an arrest. The trial gives extra safe-

guards, such as the right to cross-examine Vaughn and

present evidence in reply, that enable the trier of fact

to assess Vaughn’s story more fully than the officers did

on the scene, but the stakes at trial are also greater. The

stakes in an arrest, in addition to the sheer embarrass-

ment of it all, are whether the police may hold the suspect

for the “brief period” (Gerstein, 420 U.S. at 114) necessary

to handle housekeeping and get the suspect before a

magistrate, and the level of inquiry is correspondingly

lower. Cf. United States v. Sharpe, 105 S. Ct. 1568 (1985)

(a detention of 20 minutes, perhaps more, may be justified

on suspicion falling short of probable cause).

The police may discover, to their dismay, that when

they do not conduct an investigation they cannot get a

conviction. The uncorroborated testimony of Vaughn did

not carry the day at trial. If the two shoppers and the

stockboy had testified, things might have come out dif-

ferently. But the fourth amendment does not define as

probable cause whatever good police practice requires, or

whatever proves necessary to prevail at trial. A rule

under which a single eyewitness’s report can be probable

cause does not induce the police to make careless arrests;

their own concern for their reputations as producers of

good cases will lead them to do more as a rule—as the

officers say they did more in this case.

App. 15

_ One more consideration supports the conclusion that the

report of an eyewitness who has good reasons to tell the

truth furnishes probable cause: that ‘probable cause’’ is

not always sufficient to make an arrest. ‘Probable cause”

appears in the fourth amendment only as a requirement

for a warrant. The general rule, in the first clause of the

amendment, is that “[t]he right of the people, to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated’.

Probable cause, a soundly-based belief that the suspect

may have committed a crime, is only one component of

the “reasonableness” of arresting and detaining a person.

When the arrest for a felony occurs in a public place in

the daytime, probable cause is the only question. United

States v. Watson, supra; see also United States v. San-

tana, 427 U.S. 38 (1976). Even then the police may hold

the suspect only for a “brief period” (Gerstein, 420 U.S.

at 114) pending presentation of the case to a judicial of-

ficer. When the arrest requires the use of deadly force,

probable cause is not sufficient. Tennessee v. Garner, 105

S. Ct. 1694 (1985). When the arrest takes place in a home,

the police officer’s assessment of probable cause ordinarily

is not sufficient; the officer must get a warrant unless

the circumstances are exigent. Steagald v. United States,

451 U.S. 204 (1981); Payton v. New York, 445 U.S. 573

(1980). When the arrest (or any other seizure) takes place

in a private place at night, the police ordinarily must meet

an elevated standard (be “positive”) and perhaps establish

a special need for haste or stealth. Fed. R. Crim. P.

41(cX1); Gooding v. United States, 416 U.S. 480, 455-58

(1974); Jones v. United States, 357 U.S. 493, 498 (1958).

The common law contains one more limit, a constraint

of special pertinence here: an officer may make a custodial

arr st for a misdemeanor only if the crime was commit-

ted in his presence. See Wayne R. LaFave, Arrest: The

Decision to Take a Suspect into Custody 17-30 (1965), for

a description of the common law and its limits. The rule

reflects a widely-held belief that misdemeanors should be

prosecuted by citation unless the officer has seen the

crime committed, which greatly reduces the chance of

App. 16

mistaken arrest. Those stopped for misdemeanors such as

traffic offenses usually are cited and released on the spot

after posting bond. Most reports of misdemeanors will not

produce a sentence of custody (as opposed to a fine or

probation), so a custodial arrest itself becomes a substan-

tial part of the penalty. The Supreme Court has bypassed

opportunities to decide whether the common law rule is

part of the fourth amendment, see Gustafson v. Florida,

414 U.S. 260, 266-67 (1973) (Stewart, J., concurring). In

deciding other questions under the fourth amendment,

however, the Court has found the historical practice a

useful guide. E.g., Edwards, 415 U.S. at 804 n.6; Watson,

423 U.S. at 418-22; United States v. Ramsey, 431 U-S.

606, 616-19 (1977). Searches must be “reasonable’’, but

“reasonable” may be a term of legal art defined by

history and not an invitation to modern invention; when

the term has a developed meaning, it controls the course

of decision.

Illinois is among the states that have altered the com-

mon law rule. It allows a full custodial arrest for any

crime on probable cause. Ill. Rev. Stat. ch. 38 §107-2(c).

See also Model Code of Pre-Arraignment Procedure

692-95 (collecting statutes in other jurisdictions). The

A.L.I. recommends a statute allowing a custodial arrest

for a misdemeanor if the officer has reasonable cause to

believe that the suspect will not appear in response to

a summons or will injure himself or others. Model Code

§120.1(1Xb) and commentary at 289-90. Given the statute

in Illinois, and the principles of official immunity in Pier-

son v. Ray, supra, and their enlargement in Harlow v.

Fitzgerald, 457 U.S. 800 (1982), the officers’ decision to

arrest Gramenos cannot be the basis for an award of dam-

ages, if there was probable cause. Cf. Michigan v.

DeFilippo, 443 U.S. 31 (1979). We are not authorized to

decide in this case whether the statute abrogating the

common law rule—without putting equivalent guarantees

of reasonable conduct in its place—comports with the

fourth amendment. But this discussion is not a detour.

It is important to understand that “probable cause’”’ is

not always the same thing as “reasonable” conduct by

App. 17

the police, and that one reason why it is appropriate to

treat the statement of an apparently reputable eyewitness

as probable cause is that other rules potentially affect the

propriety of making an arrest on this information.

Gramenos does not challenge the “reasonableness” of

his arrest if there is probable cause, and he does not seek

relief against the operation of the Illinois statute authoriz-

ing misdemeanor arrests on probable cause. It is not ap-

propriate to read every element of constitutional “reason-

ableness” back into the term “probable cause”. These

terms serve distinct functions, which are lost by a homo-

genization of the legal vocabulary. We conclude that the

police need not automatically interview available wit-

nesses, on pain of the risk that a jury will require them

to pay damages. Good police practice may require inter-

views, but the Constitution does not require police to

follow the best recommended practices. There is a gap,

often a wide one, between the wise and the compulsory.

To collapse those two concepts is to put the judicial

branch in general superintendence of the daily operation

of government, which neither the fourth amendment nor

any other part of the Constitution contemplates.

The judgment is affirmed, except that the portion grant-

ing summary judgment on the claim of excessive detention

is vacated, and the case is remanded for further proceed-

ings consistent with Part III of this opinion. Jewel and

Vaughn shall recover their costs. Gramenos and the police

officers shall bear their own costs.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 18

JUDGMENT — ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 25, 1986.

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. WILLIAM J. CAMPBELL, Senior District Judge*

JAMES N. GRAMENOS, Plaintiff-Appellant,

No. 85-2767 vs. ;

JEWEL TEA Co., et ai., Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 81 C 709—John A. Nordberg, Judge.

This cause was heard on the record from the United

States District Court for the Northern District of Illinois,

Eastern Division, and was argued by counsel.

On consideration whereof, IT Is ORDERED AND ADJUDGED

by this Court that the judgment of the District Court is

AFFIRMED, except that the portion granting summary judg-

ment on the claim of excessive detention is VACATED,

and the case is REMANDED for further proceedings con-

sistent with Part III of the opinion. Jewel and Vaughn

shall recover their costs. Gramenos and the police officers

' shall bear their own costs.

* The Honorable William J. Campbell, of the Northern District

of Illinois, sitting by designation.

App. 19

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 29, 1986.

Before

Hon. RicHARD A. POSNER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. WILLIAM J. CAMPBELL, Senior District Judge*

No. 85-2767

JAMES N. GRAMENOS,

Plaintiff-Appellant,

V.

JEWEL COMPANIES, INC., et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 81 C 709—John A. Nordberg, Judge.

ORDER

Plaintiff-appellant filed a petition for rehearing and sug-

gestion of rehearing en banc on August 8, 1986. No judge

in regular active service has requested a vote on the sug-

gestion of rehearing en banc, and all of the judges on the

panel have voted to deny rehearing. The petition for re-

hearing is therefore DENIED.

* Hon. William J. Campbell, of the Northern District of Illinois,

sitting by designation.

App. 20

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

September 11, 1985

Judge Nordberg No. 81 C 709

Gramenos -v- Jewel Tea Co., et al.

a a oe Th

DOCKET ENTRY: Having reviewed the pleadings and

briefs of the parties and the Report & Recommendation

of the Magistrate dated June 25, 1985, the court adopts

the Report and Recommendation of the Magistrate and

hereby grants defendants’ motion for summary judgment.

* * * *& &

App. 21

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES N. GRAMENOS,

Plaintiff,

No. 81 C 709 Vv.

JEWEL TEA Co., et al.,

Defendants.

To: HONORABLE JOHN A. NORDBERG, JUDGE

UNITED StaTEes District COURT

HONORABLE SIR:

REPORT AND RECOMMENDATION

of Magistrate James T. Balog

Before the court are the separate motions of the Defen-

dants for summary judgment and motions to strike the

Plaintiffs Exhibits in his Reply Memorandum in Opposi-

tion to Summary Judgment.

The facts of this case arise out of the arrest of the Plain-

tiff, James N. Gramenos (““Gramenos’’) for attempted re-

tail theft. On February 12, 1980, the Plaintiff was shop-

ping in a store owned by the Defendant Jewel Tea Co.

(“Jewel”), located at 1210 North Clark Street in Chicago.

At approximately 11:30 p.m., the Defendant Johnny Vaughn

(“Vaughn”), a security officer for Jewel, stated that he

observed the Plaintiff place merchandise in his coat pocket.

(Defendant’s Reply Memorandum in Support of Summary

App. 22

Judgment, Ex. 1 at 6).1 Vaughn stated that he observed

the Plaintiff pay for other merchandise at the check-out

counter, but that he had not paid for the items Vaughn

saw him put and keep in his coat pocket. After the Plain-

tiff had passed the last point where he could have paid

for the merchandise, Vaughn approached the Plaintiff,

identified hirnself as a security guard and asked the Plain-

tiff to step into the Security Room. (Jd. at 7-8). The Plain-

tiff allegedly began screaming, ran back into the store,

throwing the items out of his coat pocket as he ran. (Jd.

at 8). The items were later identified as two tubes of tooth-

paste, jello and a jar of baby food.

Vaughn then took Plaintiff into the Security Room and

called the Chicago police. Defendant, Officer Frank Cos-

grove (“Cosgrove”) and Defendant, Officer Joseph Schmit

(“Schmit”) responded to the call. After allegedly inter-

viewing several Jewel employees and other witnesses, the

Defendants Cosgrove and Schmit placed the Plaintiff under

arrest. (See Defendant’s Memorandum in Support of Sum-

mary Judgment, Ex. 6). Based upon these events, criminal

charges were brought against the Plaintiff in the Circuit

Court of Cook County. At the close of the State’s evi-

dence in the criminal trial, a directed verdict was granted

in favor of Gramenos. Jd., Ex. 1 at 31.

Pursuant to the arrest, the Defendant Vaughn signed

a complaint against Gramenos. On the complaint, it states

that the complainant’s signature was subscribed and sworn

to before the Defendant, Sergeant Heatly (“Heatly”). The

Plaintiff maintains that Vaughn never appeared before

1 Exhibit 1 is a transcript of the criminal proceedings in the Cir-

cuit Court of Cook County.

App. 23

Heatly, therefore the complaint violated Ill.Rev.Stat., ch.

38, § 111-3(b).?

The Plaintiff claims that his prosecution by an improp-

erly verified complaint violates his right to due process

of law under the Fourteenth Amendment and that this

gives rise to an action under 42 U.S.C. § 1983. (Plaintiff's

Amended Complaint, Count I). The Plaintiff also alleges

the Defendant police officer did not have probable cause

to arrest him since they did not conduct an independent

investigation. The Plaintiff further alleges that the police

subjected him to an unreasonable search and seizure and

that they deprived him of his property without due process

of law.

As a separate cause of action against Jewel and Vaughn

under § 1983, the Plaintiff alleges that the practice of sign-

ing a complaint without appearing in person indicates “the

existence of a concerted and customary plan of action

whereby Defendant Jewel is permitted by the Chicago Police

Department to cause the arrest and prosecution of sus-

pected shoplifters without the necessity of complying with

procedur{al) safeguards ordinarily required in such circum-

stances.” (Plaintiff's Amended Complaint, { 22).

The Plaintiff seeks judgments against the three members

of the Chicago Police Department for $100,000 and against

Jewel and Vaughn for $100,000.

I. MOTION FOR SUMMARY JUDGMENT.

Summary judgment shall not be granted unless the rec-

ord reveals “that there is no genuine issue of material

2 This section requires a criminal complaint “to be sworn to and

signed by the complainant.”

App. 24

fact and that the moving party is entitled to judgment

as a matter of law.” Fed.R.Civ.P. 56(c). The burden of

showing the propriety of summary judgment relief rests

with the movant. First Nat’! Bank Co. of Clinton, IIli-

nois v. Insurance Co. of North America, 606 F.2d 760

(7th Cir. 1979). All inferences that may be drawn from

_ the evidence shall be drawn in favor of the party against

’ whom summary judgment relief is sought. Wang v. Lake

Mawxinhall Estates, Inc., 531 F.2d 832, 835 (7th Cir. 1976).

_When, however, a summary judgment movant has made

a threshold showing of the propriety of summary judg-

ment, the adverse party may not defeat the motion by

merely relying upon the allegations or denials of his plead-

ings. Fed.R.Civ.P. 56(e); First National Bank, 606 F.2d

at 767.

Il. IMPROPER VERIFICATION OF THE

COMPLAINT.

Even though the complaint against the Plaintiff in the

criminal action may have been improperly verified, the

Plaintiff has failed to show that this is a federal consti-

tutional right cognizable under § 1983 action. The Illinois

Supreme Court has specifically held that there is no con-

stitutional requirement for verification of a complaint. See

People v. Audi, 75 Ill.2d 535, 537, 389 N.E.2d 534 (1979);

People v. Harding, 34 IIl.2d 475, 481-82, 216 N.E.2d 147

(1966). Further, the requirement that the complaint be

sworn to and signed by the complainant can be waived

and is waived by proceeding to trial. People v. Bradford,

62 Ill.2d 21, 22, 388 N.E.2d 182 (1975).° In the case at

* “We therefore find that the Defendant by proceeding to trial

without prem & or raising the question women any defects that

allegedly existed in the verification of the comaialié. ” Bradford

at 22.

App. 25

bar, the Plaintiff did not object to the improper verifica-

tion of the complaint until after the close of the State’s

evidence, thereby waiving any defects. (Defendant’s Memo-

randum in Support of Summary Judgment, Ex. 1 at 31).

Further, as the Defendants indicate, the purpose of the

complaint is to give notice to the Defendant of the nature

and elements of the crime charged in order to enable the

Defendant to properly present a defense. See People v.

Puleo, 96 Ill.App.3d 457, 421 N.E.2d 367 (1st Dist. 1981).

There is no argument that the Plaintiff was not aware

of the exact nature of the charges against him or that

he could not properly present a defense. Thus, the Plain-

tiff has failed to establish that the allegedly improper

verification deprived him of any federally protected consti-

tutional rights.

III. PROBABLE CAUSE FOR THE ARREST.

The Plaintiff spends over fifty pages in his reply brief

discussing his apparent be:ief that the Defendants did not

have probable cause to arrest him. Although it is not spe-

cifically alleged in his amended complaint, apparently his

argument is that his arrest was based solely upon the

form complaint signed by Vaughn. The Plaintiff alleges

that this was insufficient to establish probable cause vio-

lating his Fourth Amendment rights.

Plaintiff's claim is unfounded. Probable cause to arrest

may be found upon the observations of the party signing

the complaint alone. See, e.g., People v. Foss, 18 Ill.App.3d

496, 499-500, 309 N.E.2d 677 (2d Dist. 1974). However,

in the case at bar, it is uncontradicted that the police offi-

cers conducted an independent investigation to determine

whether there was probable cause to arrest the Plaintiff.

Two shoppers at Jewel stated by deposition that they saw

App. 26

Gramenos place merchandise in his coat pocket and that

they later gave statements to officers Schmitt and Cos-

grove. (Defendants’ Memorandum in Support of Summary

Judgment, Ex. 7 & 8). Despite the fact that there may

be some discrepancies in the depositions of the various

witnesses and officers, it is uncontradicted that the offi-

cers did independently interview and investigate the facts

leading to Plaintiff's arrest. Since there was probable

cause for the arrest, the search and seizure of the Plain-

tiff was not unreasonable.

IV. COUNT II—§ 1983 ACTION AGAINST

JEWEL AND VAUGHN.

Ordinarily § 1983 actions may not lie against private par-

ties, such as Jewel and Vaughn, but only against state

agents acting under color of state law. The only excep-

tion to this rule is when private citizens enter into a con-

certed action with state officers to bring about a specific

chain of events. See, e.g., Flagg Bros., Inc. v. Brooks, 436

U.S. 149, 156 (1978).

Courts have found state action when private security

guards act in concert with police officers or pursuant to

customary procedures agreed to by police departments.

See El Fundi v. Deroche, 625 F.2d 195, 196 (8th Cir.

1980); Smith v. Brookshire Bros., Inc., 519 F.2d 93 (5th

Cir. 1975), cert. denied, 424 U.S. 915 (1976); Duriso v.

K-Mart, 559 F.2d 1274 (5th Cir. 1977).

However, to find state action, the merchant must act

in accordance with a pre-existing plan between merchant

and police, and the plan’s context must involve the mer-

chant’s exercise of functions exclusively reserved to the

State. Klimzak v. City of Chicago, 539 F.Supp. 221, 223

(N.D. Ill. 1982); Davis v. Carson Pirie Scott & Co., 530

App. 27

F.Supp. 799 (1982). Where the police conduct an investiga-

tion following private complaints, the private complain-

ant is not a state actor. Davis at 802. Further, mere ar-

rest after detention by store detectives will not suffice

to constitute state action. Id.

In the case at bar, it has already been established that

the police conducted an independent investigation. As the

court noted in Davis, ‘‘a ‘customary practice’ of police in-

vestigation following private complaints clearly does not

make the private complainant a state actor.” Id.

The Plaintiffs unsupported allegations may not survive

a motion for summary judgment. See First Nat'l Bank

Co. of Clinton, Ill. v. Insurance Co. of North America,

606 F.2d 760, 767 (7th Cir. 1979). Further, the Plaintiff's

unverified exhibits attached to his reply memorandum do

not raise a genuine issue of material fact.? The exhibits

totally fail to show any existence of a plan between the

Defendants whereby the merchant exercised functions ex-

clusively reserved to the State.

For the reasons stated herein, IT IS RECOMMENDED

that the court GRANT the Defendants’ motions for sum-

mary judgment.

Respectfully submitted,

/s/ JAMES T. BALOG

United States Magistrate

DATE: JUNE 25, 1985.

3 Because it has been recommended that the court grant sum-

mary F oa it need not rule upon the Defendants’ motions

to s e.

App. 28

The parties may serve and file written objections to this

Report and Recommendation within ten (10) days hereof.

Copies have, this date, been mailed to:

JAMES A. STAMOS

69 West Washington Street

Chicago, Illinois 60602

Attorney for Plaintiff

FREDERICK J. GROSSMAN

5400 Sears Tower

Chicago, Illinois 60606

Attorney for Jewel Tea Co.

and Johnny Vaughn (Defendants)

STANLEY GARBER

City of Chicago

Law Department

121 North LaSalle Street

Room 511, City Hall

Chicago, Illinois 60602

Attorney for Defendants

Schmit and Cosgrove

DARKA PAPUSHKEWYCH

Asst. Corp. Counsel

Room 511, City Hall

121 North LaSalle Street

Chicago, Illinois 60602

Attorney for Defendant

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