Opposition Brief — City of Chicago v. Hampton

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IN THE JAN 11 1974

Supreme Court of the United |Siatesooax sn.cien

OCTOBER TERM, 1973.

Nos. 73-813

73-821

EDWARD V. HANRAHAN, et al.,

Petitioners,

Vv. No. 73-821

IBERIA HAMPTON, Administratrix on behalf of the

Estate of Fred A. Hampton, Deceased, et al.,

Respondents,

AND

CITY OF CHICAGO, ct al.,

Petitioners,

v. No. 73-813

IBERIA HAMPTON, Administratrix on behalf of the

Estate of Fred <A. Hampton, Deceased, et al.,

Respondents.

BRIEF IN OPPOSITION TO PETITIONS FOR

WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

WILLIAM J. BENDER

Rutgers University

School of Law

Constitutional Litigation Clinic

175 University Avenue

Newark, New Jersey

ARTHUR KINOY

Center for Constitutional Rights

New York, New York

DAVID SCRIBNER

Of Counsel and on New York, New York

oe ee: JEFFREY HAAS

WILLIAM J. BENDER DENNIS CUNNINGHAM

Rutgers University FLINT TAYLOR

School of Law Chicago, Illinois

Constitutional CORNELIUS E. TOOLE

Litigation Clinic

175 University Ave.

Newark, New Jersey Attorneys for Respondents

Chicago, Illinois

Ng gerne We, ke

ope ee fk 8 8 eh Oe we ee

JURISDICT ION e e e e e e e ” 7 e e e

QUESTIONS PRESENTED .........

STATUTES INVOLVED ......+.2..2...

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

SUMMARY OF ARGUMENT .......2..

ARGUMENT :

THIS COURT SHOULD DENY CERTIOR-

ARI BECAUSE THE STATE'S ATTOR-

NEY PETITIONERS ARE LIABLE FOR

THE VIOLATIONS OF THE CIVIL

RIGHTS ACTS AS ALLEGED IN THESE

i ea

A. The Court Ot Appeals Cor-

rectly Applied Existing Le-

gal Standards, As Estab-

lished By This Court, In

Sustaining The Sufficiently

Pleaded Theories Of Liabil-

ity For These Prosecutorial

We “a as «ss a

B. The Court Of Appeals Cor-

rectly Held That Petition-

ers Are Not Entitled To Im-

munity As A Matter Of Law

And The Case Was Properly

Remanded Because The Suf-

ficiently Pleaded Allega-

tions Entitled Respondents

To Present Their Proofs . .

un WwW NY NHN EF

II. THE COURT OF APPEALS CORRECTLY

APPLIED EXISTING LEGAL STAN-

DARDS, AS ESTABLISHED BY THIS

COURT AND FOLLOWED BY THE CIR-

CUIT COURTS, IN SUSTAINING

LIABILITY IN CIVIL CONSPIRACY

FOR OFFICERS MULCHRONE, ERVAN-

IAN, MEADE, KUKOWINSKI, PUR-

TELL, KOLUDROVIC, SADUNAS,

MELTREGER, SOROSKY, HANRAHAN,

AND JALOVEC 7. . . . . . . . . . 40

III. PETITIONER SEEKS TO AVOID THE

APPLICATION OF ILLINOIS TORT

LAW INVOKED IN RESPONDENT

BREWER'S DIVERSITY CLAIMS,

WHICH PROVIDES FOR THE LIABIL-

ITY OF PETITIONER CITY OF CHI-

CAGO FOR THE WILLFUL AND WANTON

ACTS OF ITS EMPLOYEES ..... 45

CONCLUS ION > > . . . >. * . . >. . . . 5 3

APPENDIX:

HAMPTON COMPLAINT ...+ + «+ + H1-H15

CLARK COMPLAINT ...+ ++ «+ «» C16-C24

BREWER COMPLAINT . .. + + «+ » B25-B66

JOHNSON COMPLAINT ..... - J67-J134

CITATIONS

Cases:

Adickes v. S.H. Kress & Co.,

398 U.S. 177 (1970) ... .- 42, 43, 44

Alzua v. Johnson,

231 U.S. 106 (1913) . ~- « e © « Zi. 23

Arnolt v. City of Highland Park,

&2 Ill. 2d 27, 282 N.E. 2d 144

(1972) . al . . . * . . * >. >. >. 50, 51

iii

Barnes v. Merritt,

276 V.a8 @ (Sen Cis. 1967) «ec oe « 40

Barr v. Mateo,

360 U.S. 564 (1959) . . . . . . 22, 38

Bauers v. Heisel,

361 F.2d 581 (3rd Cir. 1966),

cert. denied, 386 U.S. 1021

aeeee e-6.4 6 ¢ 6 6 6 27, 28, 30, 31

Bell v. Hood,

mae Bene Gre Gapeer ese é¢ 6 eee 25

Bradley v. Fisher,

80 U.S. 335 (1871) .. 21, 23, 26, 39

Cawley v. Warren,

216 F.2d 74 (7th Cir. 1954) .... 27

Conley v. Gibson,

355 U.8. 41 (1957) . «© « « « « 37, 40

Dacey v. New York Lawyers’ Ass'n.,

423 F.2d 188 (2nd Cir. 1969), cert.

denied, 398 U.S. 929 (1970) .... 27

Dodd v. Spokane County, Washington,

393 F.2d 330 (9th Cir. 1968). 27, 37

Dombrowski v. Pfister,

pee Gems Gre test « e¢ 6 6 6 6 Oe 38

Duncan v. Nelson,

466 F.2d 939 (7th Cir. 1972) ... 42

Edwards v. Vasel,

aff'd per curiam, 469 F.2d 338

(8th Case . . . . . . . . . 7 41

Escalera v. New York City Housing

Authority, 425 F.2d 853 (2nd Cir.

1970), cert. denied, 400 U.S. 853

2). ise ae ae ee ee 40

Ex Parte Virginia,

100 U.S. 339 (1879) ~~... «+2 e« «

Friedman v. Younger,

282 F. Supp. 710 (C.D. Calif. 1968)

Fustin v. Bd. of Ed. of Comm. Unit

Dist. No. 2, 101 Ill. App. 2d 113,

242 N.E. 2d 308 (5th District 1968)

Gaito v. Strauss,

aff'd on other grounds, 368 F.2d

787 (3rd Cis. 1966) . . . 7 . . .

Gregoire v. Biddle,

177 F.2a 579 (2nd Cir. 1949), cert.

denied, 339 U.S. 949 (1950) . . 37,

Griffen v. United States,

295 F. 437 (3rd Cir. 1924) ...-.

Guedry v. Ford,

431 F.2d 660 (5th Cir. 1970) ...

Hilliard v. Williams,

465 F.2d 1212 (6th Cir. 1972), cert.

denied, 409 U.S. 1029 (1972) 27. 33-6

Kauffman v. Moss,

420 F.2d 1270 (3rd Cir. 1970), cert.

denied, 400 U.S. 846 (1970) ... =.

Kostal v. Stoner,

292 F.2d 492 (10th Cir. 1961), cert.

denied, 369 U.S. 868 (1962), re-

hearing denied, 370 U.S. 920

ne 6-6 6.6 «= <6 <« 6 es « 27,

Krieger v. Village of Carpentersville,

8 Ill. App. 3d 243, 289 N.E. 2d 481

(2nd District 1972) ...... 50,

Lewis v. Brautigam,

227 F.2d 124 (5th Cir. 1955) . passim

Littleton v. Berbling,

468 F.2a 389 (7th Cir. 1972) 26, 27.4

Logan v. United States,

144 U.S. 263 (1892) . ~~ «© »~ «© « «

Luker v. Nelson,

341 F. Supp- 111 (N.D. Ill. 1972) .

Lynch v. Johnson,

420 F.2d 818 (6th Cir. 1970) ...

Madison v. Gerstein,

440 F.2d 338 (5th Cir. 1971) ...

Madison v. Purdy,

410 F.2a 99 (Sth Cir. 1969) ....

Mancha v. Field Museum of Natural

History, 5 Ill. App. 3d 699, 283

N.E. 2a 899 (lst District 1972) ..

McCray v. Maryland,

456 F.2a 1 (4th Cir. 1972) .. . 27,

Mills v. County of Winnebago,

104 Ill. App. 2d 366, 244 N.E. 2d

65 (2nd District 1969) .... 50,

Mitchum v. Foster,

407 U.S. 225 (1972) > > —_ >. a > _ —

Monroe v. Pape,

365 U.S. 167 (1961) .... 22, 25,

Moore v. Buck,

443 F.2d 25 (3rd Cir. 1971) ....

Nelson v. Union Wire Rope Corp.,

32 Ill. 2d 69, 199 N.E. 2d 769

(1964) . . + o . . id . 7 > . . + a

Ove Gustavsson Contracting Co. v.

Floete, 299 F.2d 655 (2nd Cir.

1962) o 6 . - e + . - e 7 . * . . .

Peek v. Mitchell,

419 F.2d 575 (6th Cir. 1970) ...

Peterson v. Stanczak,

48 F.R.D. 426 (N.D. Ill. 1969) ..

Pierson v. Ray,

386 U.S. 547 (1967) . ...e-.

Reynolds v. City of Tuscola,

48 Ill. 2d 339, 270 N.E. 2d 415

(1971) . . . . . . ° e 2 7 7 = . 7

Rhodes v. Houston,

202 F. Supp. 624 (D. Neb. 1962),

aff'd r curiam, 309 F.2d 959 (8th

Cir. 1962), cert. denied, 372 U.S.

at , ee ee ee

Ritsema-Millgard, Inc. v. Michael J.

McDermott & Co., 295 F. Supp. 180

(W.D. IT1l. 1969) . . « « «© «© «© @

Robichaud v. Ronan,

351 F.2d 533 (9th Cir. 1965) .

Savings Ass'n v. International Ins.

Co., 17 Ill. 2d 609, 162 N.E. 2d

345 (1959) . . . . _ — .* o — > _

Scher v. Board of Education,

424 F.2d 741 (3rd Cir. 1970) ...

Schneider v. Shepherd,

192 Mich. 82, 158 N.W. 182 (1916) .

Screws v. United States,

. ££ ee el a ee ee

27,

vii

Spalding v. Vilas,

161 U.S. 483 (1896) ...... 20, 23

Symkowski v. Miller,

294 F. Supp. 1214 (E.D. Wis. 1969) 43

United States v. McLeod,

385 F.24 734 (Sth Cir. 1967) .. -« 39

United States ex rel Rauch v. Deutsch,

456 F.2d 1301 (3rd Cir. 1972) ... 27

Valdez v. Black,

446 F.2d 1071 (10th Cir.

1972) . - . . + . e e . . . 27, 32, 37

Wexell v. Scott,

2 Ill. App. 3d 646, 276 N.E. 2d 735

(Sek Diatwiat 39748) « « «© © 8 eo 8 8 50

Woodman v. Litchtield Comm. School

Dist. No. 12, 102 Ill. App. 2d 330,

242 N.E. 2d 780 (5th District 1968) 50

Yaselli v. Goff,

12 F.2d 396 (2nd Cir. 1926)... 21, 23

York v. Story,

324 F.2d 450 (9th Cir. 1963), cert.

denied, 376 U.S. 939 (1964) .... 40

Young v. Hansen,

118 Ill. App. 2d 1, 249 N.E. 2d 300

(2nd District 1969) . ....+.«. -« 50

Statutes:

42 U.S.C. §§1981 et seq. .... passim

Illinois Revised Statute:

ch. 14, §5 7 . . 2 . .

ch. 85, §§1-101 et seg. .... passim

viii

Other Sources:

Baum, “Tort Liability of Local Gov-

ernments and Their Employees: An

Introduction to the Illinois Im-

munity Act," 1966 U. of Ill. L.F.

981 . . . . . . . . ad . . . - . . o

Comment, “Illinois Tort Claims Act:

A New Approach to Municipal Tort

Immunity in Illinois," 61 Nw. U.

L.R. 265 (1966-67) .... + 2s @ 49

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

Nos. 73-813

73-821

EDWARD V. HANRAHAN, et al.,

Petitioners,

Vv.

IBERIA HAMPTON, Administratrix

on behalf of the Estate of Fred

A. Hampton, Deceased, et al.,

Respondents,

AND

CITY OF CHICAGO, et al.,

Petitioners,

No. 73-821

IBERIA HAMPTON, Administratrix

on behalf of the Estate of Fred

A. Hampton, Deceased, et al.,

Respondents.

No. 73-813

BRIEF IN OPPOSITION TO PETITIONS FOR

WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The decision of the United States Court

of Appeals for the Seventh Circuit is not

yet reported. The decision is reprinted as

Appendix "B" to the Petition of the City of

Chicago, et al., and as Appendix "A" to the

Petition Of Hanrahan, et al.

The decision of the United States District

Court is reported at 339 F. Supp. 695 (N.D.

Ill. 1972). This decision is reprinted as

Appendix "B" to the Petition of Hanrahan,

et al., and as Appeniix "A" to the Petition

of the City of Chicago, et al.

JURISDICTION

Respondents accept the statements of all

Petitioners concerning the Jurisdiction of

this Court.

QUESTIONS PRESENTED

I Whether the Court of Appeals properly re-

instated Civil Rights causes of action against

Petitioners Hanrahan and Jalovec where the

complaints allege that these States Attor-

neys engaged in illegal conduct, clearly

outside the scope of their office, by plan-

ning and conducting a violent raid intended

to cause death and injury to Respondents and

by participating in subsequent conspiracies

to conceal the true nature of their illegal

acts.

II Whether the Court of Appeals properly

reinstated causes of action against Peti-

tioners Mulchrone, Ervanian, Meade, Kukowin-

ski, Purtell, Koludrovic, Sadunas, Meltreger,

Sorosky, Hanrahan and Jalovec where Respon-

dents set forth a network of specific facts

which allege that each Petitioner engaged in

heinous acts in furtherance of an extensive

conspiracy to cause the false arrest and im-

prisonment of the survivors of the illegal

raid, the institution of unfounded prosecu-

tions and the concealment of the truth from

the public, in violation of the statutory

and constitutional rights of the Respondents.

III Whether the Court of Appeals properly

recognized that state law could be invoked

by Respondent Brewer, who, in her diversity

SES pene aerncimycnensaee ce

jurisdiction claims, pleaded violations of

Illinois Tort Law for the willful and wanton

misconduct of the Petitioners, carried out

in bad faith, consisting of assault and

battery, false imprisonment and malicious

prosecution.

STATUTES INVOLVED

SMITH HURD ILLINOIS ANNOTATED STATUTES

LOCAL GOVERNMENTAL AND GOVERNMENTAL EM-

PLOYEES TORT IMMUNITY ACT

Part 2. Immunity of public employees

S.H.A. ch. 85, §§2-109, 2-201-2, 2-208.

§ 2—109. Acts or omissions

A local public entity is not liable for an injury resulting from an act

or omission of its employee where the employee is not ale, 1965,

Aug. 13, Laws 1965, p. 2983, § 2-109.

§ 2—201. Determination of policy or exercise of discretion

Except as otherwise provided by Statute, a public employee serving in

a position involving the determination of policy or the exercise of dis-

cretion is not liable for an injury resulting from his act or omission in

determining policy when acting in the exercise of such discretion even

though abused. 1965, Aug. 13, Laws 1965, p. 2983, § 2-201.

§ 2—202. Execution or enforcement of law

A public employee is not liable for his act or omission in the execution

or enforcement of any law unless such act or omissiqn constitu’s will-

ful and wanton negligence. 1965, Aug. 13,‘Laws 1965, p. 2983, § 2-202.

§ 2—208. institution or prosecution of judicial or adminis-

trative proceeding

A public employee is not liable for injury caused by his instituting or

prosecuting any judicial or administrative proceeding within the scope

of his employment, unless he acts maliciously and without probable

cause. 1965, Aug. 13, Laws 1965, p. 2983, § 2-208.

ATTORNEY GENERAL AND STATE'S ATTORNEYS

Section 5. Duties of State's Attorneys

S.H.A. ch. 14, §5.

§ 5. Duties of state's attorney

The duty of each State's attorney shall be:

(1) To commence and prosecute all actions, suits, indictments and prose-

cutions, civil and criminal, in the circuit court for his county, ‘in which the

people of the State or county may be concerned.

(2) To prosecute all forfeited bonds and recognizances, and all actions

and proceedings for the recovery of debts, revenues, moneys, fines, penalties

and forfeitures accruing to the State or his county, or to any school district

or road district in his county; also, to prosecute all suits in his county

against railroad or transportation. companies, which may he prosecuted

in the name of the People of the State of Illinois.

(3) To commence and prosecute all actions and perenne ‘brought by

any county officer in his official capacity.

(4) To defend all actions and proceedings brought against his county, or

against any county or State officer, in his official capacity, within his coun-

ty.

(5) To attend the examination of all persons brought before any judge on

habeas corpus, when the prosecution is in his county.

(6) To attend before judges and prosecute charges of felony or misde-

‘meanor, for which the offender is required to be recognized to appear be-

fore the circuit court, when in his power so to do.

(7) To give his opinion, without fee or reward, to any county officer in

his county, upon any question or law relating to any criminal or other mat-

ter, in which the people or the county may be concerned.

(8) To assist the attorney general whenever it may be necessary, and in

cases of appeal from his county to the Supreme Court, to which it is the duty

of the attorney general to attend, he shall furnish the attorney general at

least 10 days before such ix due to be filed, a manuscript of a proposed

Statement, bricf and argument to be printed and filed on behalf of the peo-

ple, prepared in accordance with the rules of the Supreme Court. How-

ever, if such brief, argument or other document is due to be filed by law

or order of court within this 10 day period, then the State's attorney shall

furnish such as soon as may be reasonable.

(9) To pay all moneys received by him in trust, without delay, to the offi-

cer who by law is entitled to the custody thereof.

{10) To perform such other and further duties as may, from time to time,

be enjoined on him by law. :

(11) To appear in all proceedings by collectors of taxes against delinquent

taxpayers for judgments to sell real estate, and sce that all the necessary

preliminary steps have been legally taken to make the a legal and

binding.

STATEMENT OF THE CASE

This case arises out of the violent and

allegedly illegal predawn raid at the home of

Fred Hampton in Chicago, Illinois on December

4, 1969, the subsequent illegal actions

surrounding the unfounded imprisonment and

prosecution of surviving occupants of Hampton's

apartment, and the extensive official actions

taken to conceal and distort the flagrantly

illegal nature of Petitioners' own wrong-

doings during and after the raid. All of

these actions were part of a number of

specific but far reaching conspiracies to

deprive Respondents of their constitutional

and statutory rights because of their race

and political beliefs, specifically their

membership in the Black Panther Party.

During the raid, Fred Hampton and Mark Clark

were killed by police gunshots,. Others

were seriously wounded.

The Plaintiff-Respondents are Iberia

Hampton, Administratrix of the estate of her

son, Fred A. Hampton, deceased; Fannie Mae

Clark, Administratrix of the estate of her

son, Mark Clark, deceased; Verlina Brewer,

by her next friend, William R. Brewer;

Deborah Johnson; Ronald Satchel, by his next

friend, Clara Bridges; Harold Bell; Blair

Anderson, by his next friend, Benjamin Hester;

Brenda Harris; and Louis Truelock.

Four separate complaints were filed in

which Respondents claimed actual and punitive

damages under the Federal Civil Rights Acts

(42 U.S.C. §§1981, 1983, 1985, 1986, 1988)

and under Illinois law (Illinois Rev. Stat.

Ch. 85, §§1-101 et seg.). The District Court

consolidated the four cases.

The defendants named in the complaints

were: the fourteen police officers, assigned

to the State's Attorney's office, who actu-

ally conducted the raid;*+ Edward V. Hanrahan,

former State's Attorney of Cook County;

Richard S. Jalovec and Sheldon Sorosky: former

Assistant State's Attorneys; James Meltreger,

Assistant State's Attorney; John Mulchrone,

Harry Ervanian, John Meade, Robert Kukowinski,

David Purtell, John Sadunas, and Charles

Koludrovic, members of the Chicago Police

Department's Internal Inspections Division

(IID) and Crime Laboratory; Richard J. Daley,

Mayor of Chicago; James B. Conlisk, Superin-

tendent, Chicago Police Department; the City

of Chicago and Cook County, employers of the

above defendants.

Motions to dismiss were filed by all

d2fendants. The District Court found the

allegations plainly sufficient to state claims

against the fourteen State's Attorney police

who conducted the raid. Final judgment was

entered dismissing all claims against the

remaining fifteen defendants.

The United States Court of Appeals for the

Seventh Circuit substantially reversed the

District Court's holdings. It reversed and

remanded as to defendants Hanrahan and

Jalovec, as well as to defendants Sorosky,

Meltreger, and the seven IID and Crime Lab-

oratory officers. Circuit Judge Stevens

stated that, "(t]he district court erred

in holding that the immunity doctrine requires

1 In their Petition for Certiorari, Petitioners

Hanarahan, et al. incorrectly stated that only

seven of these fourteen officers were named

as defendants.

_ vinhineiiieenaniiatinenaatanil

dismissal, without trial, of plaintiffs'

charges against defendants Hanrahan and

Jalovec." The allegations against Hanrahan

and Jalovec were held sufficient, under the

Federal Civil Rights Acts, to withstand a

motion to dismiss. In order to determine the

liability of the prosecutorial defendants,

the Seventh Circuit required a factual exam-

ination as to whether their alleged wrong-

doings were outside the scope of the

authority of state's attorneys.

The Court of Appeals further held that the

District Court incorrectly entered a final

judgment disposing of the conspiracy claims

against defendants Sorosky, Meltreger, and

the IID and Crime Laboratory officials. As

with Hanrahan and Jalovec, the issues involved

were found to require resolution by the trier

of fact. The Court held that, “if some [de-

fendants] are in fact liable, it would be

unjust to exonerate all before trial, or even

discovery, has commenced."3

In addition, the Seventh Circuit upheld

state tort claims pleaded by Respondent Brewer,

a Michigan resident, against the defendants

City and County in her complaint predicated

on diversity jurisdiction. The opinion

stated that, "(T]he Illinois statute does

not immunize municipal corporations from liability

Z The Court of Appeals Opinion is reprinted in

the appendix to the Petition for Certiorari of

Hanrahan, et al. (Hereinafter, Pet. followed

by the designated appendix page number), e.g.,

Pet. 8a.

3 Pet. 9a

if their agents are guilty of willful and

wanton misconduct. The allegations in the

Brewer complaint against the City of Chicago

and Cook County are therefore sufficient."

The District Court's dismissal of all other

counts by remaining plaintiffs against the

City and County, and of all counts against

defendants Daley and Conlisk was affirmed by

the Court of Appeals.

The Petitioners here are: Hanrahan and

Jalovec; Mulchrone, Ervanian, Meade, Kukow-

inski, Purtell, Sadunas, Koludrovic, Sorosky,

and Meltreger; and the City of Chicago.5

Motions to stay the mandate of the Seventh

Circuit were made by Petitioners and denied.

All remaining causes of action were remanded

to the Trial Court and discovery proceedings

are presently underway.

A. Conduct Of Petitioners Hanrahan And

Jalovec

1. Prior To and During The Raid

As characterized by Circuit Judge Stevens,

the, “[p]laintiffs allege that fourteen

Chicago police officers raided an apartment

at 2337 West Monroe Street at 4:15 A.M. on

December 4, 1969, for the purpose of killing

Mark Clark and Fred Hampton and punishing

seven other residents of the apartment because

they were Black and had exercised their First

4 Pet. lia

5 the County did not join in these Certiorari

proceedings.

Amendment rights as members of the Black

Panther Party."6 Petitioners Hanrahan and

Jalovec, along with these fourteen officers,

met and planned this raid as part of an

overall conspiracy to deprive Respondents of

their constitutional and statutory rights and

to discriminate against them because of their

race and political beliefs.’ The complaints

state that: At a predawn hour when defendants

knew the Hampton apartment would be occupied,

fourteen heavily armed police officers, on

special assignment to the State's Attorney's

office, raided those premises.8 Established

procedures for subduing occupants during a

search, such as the use of tear gas,were

ignored.9 Instead, upon entry and without

provocation, the police used automatic machine

6 Pet. la-2a

7 all references to the complaints, which are

reprinted in the appendix to this brief, are

cited as follows: H 1-15 refer to the pages

of Respondent Hampton's complaint; C 16-24

refer to the pages of Respondent Clark's com-

plaint; B 25-66 refer to the pages of Respon-

dent Brewer's complaint; J 67-134 refer to

the pages of Respondent Johnson's complaint,

e.g., Liability predicated upon 42 USC §§ 1983,

1985;H 9-433; C 23-419; B 37-445; J 86-452.

8 B 36-443; 3 82-450

9 Ibid.

guns, carbines, pistols, and shotguns to fire

massive amounts of ammunition into Hampton's

bedroom, as well as into the general living

quarters of the apartment.10 Hanrahan,

Jalovec, and others did willfully, maliciously,

and with specific intent plan these acts

which involved the use of deadly and excessive

force.11 as a direct and proximate result of

the use of this deadly and excessive force,

two young men--Black Panther Party Chairmeg

Fred Hampton and Mark Clark--were killed.

Hampton's bullet-riddled body was dragged

frem his bed to an adjoining room without

knowledge of whether he was dead or alive.13

Four additional plaintiffs were greviously

wounded by police gunfire.14 all seven

surviving plaintiffs, including a woman who

was eight months pregnant, were verbally and

physically abused and subject to illegal

arrest. Before leaving, the raiding party

ransacked the premises, stole and damaged

persona! property, and spoliated evidence of

their own illegal acts.1

10 H 5-"qB-16; C 21-412; B 32-427; 3 76-432

11 H 6-420; C 23-416; B 33-432; 3 77-439

12 H 6-420; C 22-414 |

13 H 5-418 |

14 B 32-928; 3 76-433 |

15 B 32-429; J 76-4435, 36

16 y 5-419; B 32-430; 3 76-437

Thus, the complaints clearly allege that

Petitioners Hanrahan and Jalovec, as well as

the fourteen participating officers, did

intentionally and negligently deprive

plaintiffs of their civil rights by this

illegal entry, assault, battery and other

illegal acts, and in the case of Hampton and

Clark, by the summary punishment of wrongful

death.17 Furthermore, as “immediate superiors

of the raiding party" and/or as "“co-partici-

pants," Hanrahan and Jalovec allegedly had

prior knowledge of the conspiracy, had the

power to prevent the illegal acts committed,

and did absolutely neglect and refuse to do

so.

2. After the Raid

The complaints set forth events that trans-

pired subsequent to the raid, which further

deprived the surviving plaintiffs of their

fundamental civil rights. The seven surviving

occupants of Hampton's apartment were

subjected to false imprisonment and to willful

17 Liability predicated upon 42 USC § 1981

et seq,particularly 91983. H 6-420, H 8-430;

e 5-48, B 31-Count one, B 35-Count two;

J 75 -Count one, J 82-Count two.

18 ,iability predicated upon 42 USC §1986;

H 10-435; B 38-447; J 90-454

and malicious prosecution.19 As character-

ized by the Seventh Circuit, the plaintiffs

allege that Hanrahan, Jalovec and others were

involved in "an extensive conspiracy to cause

the false arrest and imprisonment of the

surviving plaintiffs, the institution of an

unfounded prosecution, and the concealment of

the truth from the public."20 petitioners

Hanrahan and Jalovec not only participated in

this conspiracy, 21 but had the power and

19 tiability predicated upon 42 USC §1981 et.

seg., particularly §1983. B 39-Count five,

B 52-Count nine; J 93-Count five, J .117-Count

nine.

During and after the raid at Hampton's

apartment, the fourteen participating officers

and the seven members of the Police Depart-

ment's Crime Laboratory and IID were employees

of the City of Chicago. While duly employed

officials of that City, defendants allegedly '

injured plaintiffs by their willful and wanton

conduct, namely, the illegal entry, assault

and battery, false imprisonment, and malicious

prosecution of these Black Panthers. Under

the theory of respondeat superior, the City of

Chicago is liable for injuries sustained by

plaintiff Brewer, who established jurisdiction

by diversity of citizenship. (B 59-66)

ee ee

20 Pet. 8a

;

21 Liability predicated upon 42 USC §§ 1983,

1985; B 41-Count six, B 43-Count eight;

J 97-Count six, J 103-Count eight.

authority to prevent the harm suffered by

Respondents, and gnce again did neglect and

refuse to do so.?

The complaints allege that, in furtherance

of this extensive conspiracy, Hanrahan,

Jalovec, and others planned and agreed to

lodge knowingly fraudulent charges of attempted

murder, aggravated battery, and other offenses

against the surviving plaintiffs.23 After

plaintiffs' arrests, bail was set prohibitively

high. Plaintiffs were denied a preliminary

hearing at which they would have been able to

demonstrate the utter falsity of the charges.24

Consequently, they remained illegally incar-

cerated on knoyingly false charges for

eighteen days.

In conjunction with their actions concerning

plaintiffs' imprisonment and prosecution,

Hanrahan and Jalovec played primary roles in

preparing and publicizing a falsified version

of the raid. The complaints allege that

defendants met and prepared a composite version

of the raid that would justify the wanton

brutality of the participating police officers. 26

22 Liability predicated upon 42 USC §1986;

B 42-Count seven, B 55-Count ten; J 100-

Count seven, J 122-Count ten.

23 B 40-450; J 93-457

24 B 40-9949, 50; J 93-4456, 57

25 B 40-452; 3 94-459

26 B 47-Ye; J 108-Ye

Portions of this falsified account were

released to the press, television, and radio,

including a detailed photographic report.27

Hanrahan and Jalovec staged and directed a

filmed re-enactment of the December 4th raid

for television that they knew to be a false

depiction of those occurrences.28 Hanrahan

requested an investigation by the Internal

Inspections Division of the Chicago Police

Department designed to corroborate his false

version of the raid. He thereby once more

sought to justify the illegal actions of the

raiding officers, and to support the knowingly

false criminal charges lodged against the

surviving plaintiffs. 2

B. Conduct Of Petitioners Sorosky, Meltreger,

Mulchrone, Ervanian, Meade, Kukowinski,

Purtell, Koludrovic, And Sadunas.

The complaints allege that in periodic

meetings after the raid, defendants Sorosky,

Meltreger, Mulchrone, Ervanian, Meade,

Kukowinski, Purtell, Koludrovic, and Sadunas

did plan, agree, and conspire to injure

plaintiffs by preparing and circulating to the

public a number of "official reports." These

reports were calculated to falsify and distort

the occurrences of the brutal December 4th

raid. They also served to justify the continued

27 B 47-a4£,h; J 108-¥f£, J 109-qh

28 B 48-qi; J 109-4¥i

29 B 48-k; J 110-4k

prosecution of the imprisoned plaintiffs. 30

The above-named Petitioners were specifically

responsible for manipulating the investigations

and findings of the Police Department Crime

Laboratory and Internal Inspections Division.

The allegations concerning the Crime

Laboratory officials charge that Sadunas and

Purtell filed an incomplete and erroneous

firearms report which incorrectly concluded

that plaintiff Harris fired at the police

during the raid.3l At the Cook County

Coroner's Inquest, Sadunas and Koludrovic

testified falsely concerning the physical

evidence removed from Hampton's apartment. 32

Sadunas, under oath, gave testimony before

the Cook County Grand Jury that he knew to

be false, inaccurate, and misleading.

The entire IID investigation was allegedly

a blatant attempt to further validate the

knowingly false version of the raid. IID

Supervisors Mulchrone and Ervanian intention-

ally avoided using standard investigatory

procedures in order to prevent the disclosure

of any damaging information. In searching

the apartment after the raid, Koludrovic and

others sought only evidence of shots fired

30 B 44-460; J 104-467

31 5 51-qu; J 113-qu

32 B 50-t; J 113-%t

33 B 51-¥v; J 113-"v

34 B 48-q1; J 110-41

by occupants and not gvidence of the shots.

fired by the police. 3

Petitioner Meade, along with Assistant

State's Attorneys Sorosky and Meltreger,

prepared all the questions with the

corresponding desired answers in advance of

the bogus IID interrogation of the fourteen

participating police officers.36 Sorosky,

Meltreger, and Jalovec then met with those

officers prior. to the interrogation and in-

formed them of the qypropriate false responses

to those questions.37 These actions were

taken to insure that there would be no

discrepancy between the findings of the IID

and Hanrahan's knowingly false version of the

raid.

It is therefore clearly pleaded that, by

participating in the concealment of the truth

concerning the raid and in the willful and

malicious prosecution of the survivors,

Petitioners Sorosky, Meltreger, Mulchrone,

Ervanian, Meade, Kukowinski, Purtell,

Koludrovic, and Sadunas intentionally deprived

Respondents of their civil rights.38 In

addition, they conspired to deprive the |

survivors the the equal protection of the laws ,29

35 B 46-Yc; J 107-4c

36 B 49-G4m,n; J 110-4¥4m,n |

37 3 111-40

38 Liability predicated upon 42 USC §1981 et

seq, particularly§1983; B 52-Count nine; J 117-

Count nine.

39 Liability predicated upon 42 USC§1983,§1985;

B 43-count eight; J 103-Count eight.

and neglected to prevent harm to those

Respondents when they had the power,

authority, and responsibility to do so. 40

40 Liability predicated upon 42 USC §1986;

B 55-Count ten; J 122-Count ten.

SUMMARY OF ARGUMENT

The complaints filed by Respondents al-

lege that they have been injured and de-

prived of their statutory and constitutional

rights at the hands ot Petitioners, who

planned and conducted a violent raid, in-

tended to kill Fred Hampton and Mark Clark

and injure other Respondents because of

their race and political beliefs. Peti-

tioners are also alleged to have engaged in

subsequent conspiracies and illegal actions

to obfuscate the nature of their own wrong-

doings. The Court of Appeals properly held

that the allegations sufficiently stated

Civil Rights causes of action against Peti-

tioner State's Attorneys, and that as a

matter of law, the doctrine of quasi-judi-

cial immunity does not require dismissal of

these claims without trial.

Respondents seek to vindicate federally

protected rights and to recover from Peti-

tioners for the flagrantly illegal and

ruthless acts which were totally unrelated

to Petitiqnera' cuasi-judisial offices. Peti-

tioners attempt to shield themselves from

liability for their misconduct by subverting

the century-old doctrine of judicial immunity.

This doctrine requires that the liability

of judicial officers is to be determined by

the nature of. the conduct and not by virtue

of the offices they hold. Petitioners urge

that this Court undermine one hundred years

ot legal precedent and clothe them with an

absolute protection from liability irrespec-

tive of the nature of their alleged mis-

conduct. Respondents argue that the factual

determination as to the nature of Petition-

ers' conduct, ordered by the Court of Appeals,

should be allowed to proceed.

Respondents’ complaints allege that Peti-

tioners were engaged in,"an extensive con-

ne —

spiracy to cause the false arrest and im-

prisonment of the surviving plaintiffs and

the institution of an unfounded prosecution,

and the concealment of the truth from the

public." See Statement of the Case, p. 12.

The Court of Appeals properly held that

these allegations were sufficient to sustain

a civil conspiracy cause of action under

the existing standards for such pleadings

established by this Court.

The Court of Appeals properly held that

the allegations in the Brewer complaint con-

stituted sufficient causes of action, not-

withstanding Petitioners' claim that the

Illinois Tort Immunity Act precludes liabil-

ity for the City of Chicago. Neither the

Act nor the relevant Illinois case law

supports this claim of immunity by the City

of Chicago for the willful and wanton mis-

conduct of its agents.

I. THIS COURT SHOULD DENY CERTIORARI

BECAUSE THE STATE'S ATTORNEY PETITIONERS

ARE LIABLE FOR THE VIOLATIONS OF THE

CIVIL RIGHTS ACTS AS ALLEGED IN THESE

COMPLAINTS.

A. The Court Of Appeals Correctly Applied

Existing Legal Standards, As Established

By This Court, In Sustaining The Suffic-

iently Pleaded Theories Of Liability For

These Prosecutorial Officials.

The Court of Appeals ruled that the District

Court erred in holding that the immunity

doctrine requires dismissal, without trial,

of the causes of action against Petitioners

Hanrahan and Jalovec for their alleged

participation in the planning and execution

of the raid.41 this ruling is consistent

with the legal standards established by this

Court and with the decisional law of the other

Circuits. These decisions recognize a clear

basis for allowing this civil action against

these prosecutorial defendants.

Respondents allege that they have been the

victims of a deliberate abuse of governmental

power and a purposeful discrimination by

these State's Attorneys. The acts for which

Respondents seek to hold Petitioners liable :

"are manifestly [and] palpably beyond their

authority," and have no “connection with the

general matters committed by law to [their]

control or supervision." Spalding v. Vilas,

41 petitioners Hanrahan and Jalovec are also

alleged to have been participants in the

conspiracies subsequent to the actual plan-

ning and execution of the raid. These allega-

tions are discussed in Part II, of this brief,

infra.

161 U.S. 483, 498 (1896). The acts with which

Petitioners are charged are unrelated to the

judicial process and are nowhere authorized

for them in the Statutes or Constitutions of

Illinois or the Nation. Rather, the allega-

tions charge that Respondents were subjected

to the misuse of state power and the flagrant

violation of their constitutional rights by

these Petitioners, made possible only because

Petitioners were clothed with the authority

of state office.

This Court has consistently held that

judicial and quasi-judicial officials are

liable in damages when they act outside their

judicial and quasi-judicial capacities. The

leading decision of this Court concerning the

doctrine of judicial immunity at common law

holds that judicial officers will be liable

to civil actions when they act in the absence

of jurisdiction.42 “Where there is clearly no

jurisdiction ... any authority exercised is a

usurped authority, and for the exercise of

such authority ... nu excuse is permissible."

The planning, direction, and authorization of

an illegal raid involving the use of deadly

force clearly are not judicial or quasi-

judicial functions.

This Court has also required that the

liability of judicial and quasi-judicial

officers is to be determined by the nature of

their conduct and not by virtue of the offices

42 tn vaselli v. Goff, 12 F.2d 396 (2d Cir.,

1926); aff'd per curiam, 275 U.S. 503 (1927),

on the suthortty oF Bradley v. Fisher, 80 U.S.

335, 347 (1871) and Alzua v. Johnson, 231 U.S.

106, 111 (1913), it was held that the doctrine

of judicial immunity was to be afforded to

"quasi-judicial" officers, such as prosecuting

attorneys.

penis 22 ae

they hold. Specifically, such officials are

liable for actions which are not discretionary.

Ex Parte Virginia, 100 U.S. 339 (1879). “It

is not the title of office but the duties with

which the particular officer ... is entrusted

..- which must provide the guide in delineating

the scope of the rule which clothes official

acts ... with immunity ...." Barr v. Mateo,

360 U.S. 564, 573 (1959). "There is no Litmus

paper test to distinguish acts of discretion**,

.-. the determination of the real question

{is whether] the act complained of [is] the

result of a judgment or decision which it is

necessary that the government official be free

to make without fear or threat of vexatious or

fictitious suits and alleged personal liability?"

Ove Gustavsson Contract 14 Co. v. Floete, 299

The obligation of these Petitioners to

protect life, liberty and due process, and to

afford the equal protection of the laws, is

not a discretionary governmental function.

Such protections are constitutional guarantees.

Petitioners, like all public officials, have

a duty to insure the protection of such rights.

See, an v. United States, 144 U.S. 263

(189275 Screws v. United states, 325 U.S. 91

(1945); and Monroe v. Pape, 305 U.S.167 (1961).

Respondents allege that these prosecutorial

defendants have unlawfully, willfully, and

maliciously violated their constitutional

rights and deprived them of the equal protec-

tion of the laws. It is anomalous for

Petitioners to suggest that such unlawful,

willful and malicious violations of the

Constitution have ever been committed by law

to the discretionary control or supervision of

any officer, regardless of rank or station in

the government. No official is given a

“discretionary function" which constitutes a

license to violate the fundamental rights

tine sates

Semone

guaranteed by the Constitution. Where

judicial officers, such as these prosecuting

attorneys, engage in deliberate violations of

constitutional rights, such conduct is beyond

the scope of duties constituting an integral

part of the judicial process, and has no,

“connection with the general matters committed

by law to the officer's control." Spalding v.

Vilas, supra, at 498. Hence, these prosecutors

cannot, wehsiter [themselves] from liability

by the plea that [they] are acting under color

of office (citations omitted)." Lynch v.

Johnson, 420 F.2d 818, 821 (6th cir., 1570).

This Court has continually refused to

extend the doctrine of immunity to exempt

judicial officers from liability in damages

for the type of conduct alleged in this case.

In Yaselli v. Goff, 12 F.2d 396 (24 Cir.,

1926); a per Curiam, 275 U.S. 503 (1927),

on the authority of Bradley v. Fisher, supra,

and Alzua v. Johnson, 231 os: 106 (1913),

the Court emphasiz that prosecuting attorneys

would be liable for misconduct unrelated to

the duties of a quasi-judicial officer,

Yaselli v. Goff, supra, at 406. "If {a

prosecuting attorney] proceeds upon such a

course of action, he does so at the same peril

as does the unofficial citizen. His office is

not a cloak to protect him from liability for

a wrong thereby resulting to an innocent person."

Schneider v. Shepherd, 192 Mich. 82, 88, 158

-W. ° , cited with approval in

Yaselli v. Goff, Supra, at 405. :

43 Yaselli v. Goff, Supra, aff'd per curiam

by this Court, relies on two cases ere

prosecuting attorneys were held liable in

civil damages. Because of the remarkably

similar facts, significant portions of

(footnote continued on next page)

(footnote continued from previous page)

those cases are quoted:

In Schneider v. shephere: 192 Mich. 82

158 N.W. ° e prosecuting

attorney directed the chief of police of

the city of Detroit to raid a certain

house and arrest the inmates and bring

them to police headquarters. This he did

on the strength of a report ... that the

place to be raided was a house of prosti-

tution. It was in fact the home of a

reputable citizen. The action brought

was for an illegal arrest, and the defense

interposed was probable cause, and that

defendant was entitled to the immunity

of a quasi-judicial officer. The trial

judge called attention to the fact that

under the Constitution and statutes of

Michigan the duty of prosecuting attorneys

was to prosecute or defend in all the

courts of the county all prosecutions,

suits, applications, and motions, whether

civil or criminal, in which the state or

county may be a party .... The judge went

on to say: "The investigation of alleged

crimes by the prosecuting attorney, .-.-

finds no statutory sanction in the

prescribed powers and duties of a pro-

secuting attorney. If he proceeds upon

such a course of action, he does so at

the same peril as does the unofficial

citizen. His office is not a cloak to

protect him from liability from a wrong

thereby resulting to an innocent person

subjected to false arrest. The statute

affords no such robe of immunity.”

"In Leong Yau v. Carden, 23 Hawaii,

362, 369, the court Said: "A public

prosecuting officer, in determining

whether certain purported facts

(footnote continues on next page)

The Civil Rights Acts were enacted

specifically to provide a mechanism whereby

the federal system could intervene when

| public officials, acting under color of law,

deprived citizens, like these Respondents,

of rights guaranteed to all, irrespective of

race. Monroe v. Pape, 365 U.S. 167 (1961).

The role of the federal government as a

guarantor of basic federal rights against the

abuse of power by the states was clearly

established. Bell v. Hood, 327 U.S. 678 (1946).

"Section 1983 opened the federal courts to

private citizens, offering a uniquely federal

remedy against incursions ... upon rights

secured by the Constitution and laws of the

Nation." Mitchum v. Foster, 407 U.S. 225, 239

(footnote continued from previous page)

+++ justify the accusation and prosecution

of a person believed to have committed an

offense, acts in a quasi-judicial Capacity,

and he is not to be held liable in damages

for an honest mistake or error of judgment

in instituting a criminal proceeding

against such person. But if he prosecutes

without probable cause and with malice he

certainly is in no better position than

the judge of a court--superior or inferior

~-who proceeds maliciously and without any

jurisdiction .... Public prosecuting

officers are entitled to protection against

claims growing out of the discharge of

their duties done in good faith though

with erroneous judgment; but private

individuals are entitled to the protection

of the law against any conduct of such

officers which is at once reckless,

malicious, and damaging."

Id. at 405-406,

(1972). 44

The decision of the Seventh Circuit is

also consistent with the decisions of other

Circuits. The Circuits have consistently

applied the “absence of jurisdiction" test

established by this Court in Bradley v.

Fisher, supra, to determine the applicability

of the im ity defense to a prosecuting

attorney. Whenever the defense of pro-

secutorial immunity is raised, the dispositive

inquiry becomes whether the allegations are

sufficiently removed from judicial (or quasi-

judicial activity) to warrant removing the

cloak of immunity from defendant prosecutors.

See Littleton v. Berbling, 468 F.2d 389,

410-411 (7th Cir., 1572). Petition for Cert-

iorari pending as to Petitioner prosecutor

Berbling; Certiorari granted as to other

parties. «U.S. __, -:93 S. Ct. 1544 (1973).

In Lewis v. Brautigam, 227 F.2d 124 (5th

Cir., 1555), the Fifth Circuit held that a

44 The Seventh Circuit's opinion is in accord

with this Court's decision in Pierson v. Ray,

386 U.S. 547 (1967). In Pierson, supra, this

Court held that the common law doctrine of

immunity for judicial officers was unimpaired

by the Civil Rights Act. Unlike this case,

the record in Pierson, supra, was, “barren of

any proof or specific allegation that [the]

judge played any role in [the] arrests and

convictions other than to adjudge petitioners

when their cases came before this Court." Id.

at 553. In the present case, Respondents have

alleged conduct on the part of Petitioners,

which constitutes extremely aggravated wrongs

and ruthless violations of their Constitutional

rights.

45 The Circuits uniformly agree that prosecu-

torial immunity, derived from judicial

(footnote continued on next page)

es «2

state's attorney who ordered two deputy

sheriffs to force the plaintiff to be

photographed in convict garb at a state

prison and attempted to coerce the plaintiff

to plead guilty to a criminal charge could be

liable for damages under Sections 1983 and

1985:

.-- [A] quasi-judicial officer, such as

a prosecuting attorney, who acts outside

the scope of his jurisdiction and

without authorization of law, cannot

(footnote continued from previous page)

immunity, was extended to prosecutors as

quasi-judicial officers, and is limited to

actions within the scope of a prosecutor's

duty. See, e.g., Dacey v. New York Lawyers’

Ass'n., 423 F.2d 188 CCL cert. Tented:

358 U.S. 929 (1970), Second Circuit; United

States ex rel Rauch v. Deutsch, 456 F.2d 1301

, and Bauers v. Heisel, 361 F.2d 581

(1966), cert. denied, 386 U.S. 1021 (1967),

Third Circuit; McCray v. Mar land, 456 F.2d 1

(1972), Fourth Circuit; Madison v. Gerstein,

440 F.2d 338 (1971), and Lewis v. Brauti am,

227 F.2d 124 (1955), Fifth Circuit; Ailitara

v. Williams, 465 F.2d 1212 (1972), cert.

denied, 409 U.S. 1029 (1972), Sixth Circuit;

Littleton v. Berbling, 468 F.2d 389 (1972),

petition for Certiorari pending as to Petitoner

Berbling, Certiorari granted as to other

parties, 93 S.Ct.1544 (1973) , and cawley v.

Warren, 216 F.2d 74 (1954), Seventh Circuit;

Rhodes v. Houston, 202 F.Supp. 624 (1962),

a er curiam, 309 F.2d 959 (1962), cert.

denied, 372 U.S. 909 (1963), Eight Circuit;

Dodd v. Spokane Count Washington, 393 F.2d

330 (S68) and Eabichead v. ROnan, 351 F.2d

533 (1965), Ninth Circuit; Valdez v. Black, 446

F.2d 1071 (1971), cert. denied 405 U.S. 063

(1972), and Kostal v. Stoner, 292 F.2d 492

(1961), cert. denied, 365 U.S. 868 (1962), re-

hearing denied, 370 U.S. 920 (1962), Tenth Circuit.

shelter himself from liability by the |

plea that he is acting under color of

office. Id. at 129.

Recently, the Fifth Circuit reiterated its

holding in Lewis, supra, in Guedry v. Ford,

431 F.2d 660 (5th Cir., 1970):

A prosecuting attorney, when acting in

his official capacity is protected by

the same immunity in civil cases that

is applicable to judges, provided that

his acts are within the scope of his

jurisdiction and by authorization of

law. (citations omitted)

Id.. at 663.

In so holding, the Court cited analagous

decisions by other federal courts with

approval. 4

46 the Fifth Circuit opinion in Guedry v. Ford,

supra, cited cases from other Circuits with

approval: Peek v. Mitchell, 419 F.2d 575 (6th

Cir., 1970); Bauers v. Heisel, supra; Friedman

v. Younger, 282 F.Supp. 710 (C.D. Calif., 1968);

Cf. Peterson v. Stanczak, 48 F.R.D. 426 (N.D.

I1l., 1965). Petitioners contend that the

Fifth Circuit has, “adopted a slightly stricter

twofold standard," than the “jurisdictional

test” of the Third Circuit in Bauers v. Heisel,

supra, (Petition of Hanrahan, et al., p. 9).

e Fifth Circuit's reliance on the Bauers

test for its formulation of the test for

prosecutorial immunity, refutes Petitioners'

attempt to differentiate the tests used by the

Third and Fifth Circuits.

In Robichaud v. Ronan, 351 F.2d 533 (9th

Cir., 1565), the Ninth Circuit held that a

complaint sufficiently stated a civil rights

claim for damages against the prosecuting

attorneys for an alleged attempt to coerce a

confession to a murder. In reinstating the

complaint which the District Court had dis-

missed, the Court of Appeals stated that:

Section 1983 ... was intended to provide

a remedy to persons subjected to '[mJisuse

of power, possessed by virtue of state

law and made possible only because the

wrongdoer is clothed with the authority

of state law, ...' (citation omitted).

Thus, if immunities are broadly granted

to state officers without consideration

of the nature of their alleged misdeeds

and the reason for the immunity, the

statute becomes subject to circumvention,

if not emasculation.

x**e

"Prosecutors are not immune from suit

under the act simply as a matter of

status wholly without regard to the

nature of their conduct." (citations omitted)

x «ek

The title of office, quasi-judicial or

even judicial, does not of itself,

immunize the officer from responsibility

for unlawful acts which cannot be said

to constitute an integral part of the

judicial process.

Id.. at 536-38,

In reaching its result in Robichaud, supra,

the Ninth Circuit relied on the reasoning of

the Fifth Circuit in Lewis v. Brautigam, supra:

In the Lewis case, a state's Attorney,

an official prosecutor, was sued, not for

acts done in the course of his quasi-

judicial role, but rather for acts done

in his investigative role .... [I]f

the State's Attorney ordered and directed

the officers to force the plaintiff to

plead guilty, then certainly he is no

less liable than are those who carried

out his instructions .... We agree with

the reasoning of the Lewis case, and we

must apply the principle here. The trial

court must determine the nature of the

acts alleged to have been wrongfully

committed, for the appellees may have

abandoned their ‘quasi-judicial' role.

If they, so doing, committed acts, or

authoritatively directed the commission

of acts, which ordinarily are related to

police activity as opposed to judicial

activity, then the cloak of immunity

should not protect them. (citations omitted).

Robichaud v. Ronan, supra, at 537.47

The Third Circuit has agreed with the other

Circuits on the circumstances which will render

prosecuting attorneys liable to civil suits.

In Bauers v. Heisel, 361 F.2d 581 (1966), the

47 petitioners also attempt to create a

distinction between the standards used by the

Fifth Circuit in Lewis v. Brautigam, supra,

and the Ninth Circu n Robichaud v. Ronan,

supra. This distinction Is without foundation,

Since the Court in Robichaud v. Ronan, supra,

at 537, emphasized its reliance on the reason-

ing used by the Fifth Circuit in Lewis v.

Brautigam, supra. Prosecutors are liable for

investigative acts under Robichaud, supra,

because such acts are not within the scope

of a prosecutor's quasi-judicial duty.

Court stated:

The immunity of a prosecutor, however,

is not without limitation: it is not

absolute. The immunity of judges,

from which the immunity of prosecutors

is derivative, does not extend to acts

which are clearly outside their juris-

diction. Bradley v. Fisher, supra.

x kek

The clear-absence-versus-mere-excess of

jurisdiction distinction has, in

substance, been adopted and applied in

Civil Rights Act cases brought against

judges and other judicial officers.

Robichaud v. Ronan, [supra]; Corsican

Productions v. Pitchess, 338 F.

(CA. 5, 1964); Spires v. Bottorff,

317 F.2d 273 (C.A. 7, 1963); Lewis v.

Brautigam, [supra]. 48

Id. at 590-591.

48 Gaito v. Strauss, 249 F. Supp. 923 (W.D.

Penn. , a on other grounds, 368 F.

2d 787 (3d Cir., 1966) is cited by Petitioners

as a rejection of the Robichaud “quasi-judicial/

investigative test." (Petition of Hanrahan, et

al., p.- 15). Dicta in the District Court did

reject the Robichaud formulation, however this

view was not adopted by the Third Circuit

which affirmed on other grounds. Further, the

Third Circuit's approval of both the Robichaud

and Lewis opinions in the Bauers case, con-

vincingly repudiates the proposition that the

Third, Fifth and Ninth Circuits have employed

disparate tests. The Third Circuit recently

affirmed its holding in Bauers v. Heisel,

supra, in Moore v. Buck, 443 F.2d 25, 26 (3rd

Cite, BeTal s

oe ee

The Tenth Circuit has applied the same

test rendering prosecutors liable for acts

not within the scope of their official duties.

Kostal v. Stoner, 292 F.2d 492 (10th Cir.,

, certiorari denied, 369 U.S. 868 (1962),

rehearing denied, 370 U.S. 920 (1962).

More recently, the Tenth Circuit has reiterated

its adherence to this test used by the other

Circuits. Valdez v. Black, 446 F.2d 1071

(1971). In sustaining the trial court's

instructions to the jury regarding prosecu-~

torial immunity in a Civil Rights action,

the Court of Appeals held:

The gist of the [immunity] instruction

was that the law grants immunity to a

district attorney for acts done or

ordered by him in the performance of

his official duties as an integral part

of the judicial process, but that if a

district attorney abandons the performance

of his official duties and commits or

directs the commission of acts which are

ordinary police activity instead of

judicial activity ... then he is no less

liable than those who carry out his

instructions. We perceive no error in

giving this instruction and believe it

to be in line with such cases as Kostal v.

Stoner, 292 F.2d 492 (10th Cir., T1561).

See also, Dacey v. New York County La ers'

Assn., 423 F. Lee , cert.

denied, 398 U.S. 929; Kauffman v. Moss,

420 F.2d 1270 (3d Cir., 1570), cert denied

400 U.S. 846 (1970); Peek v. Mitchell, 419

F.2d 575 (6th Cir., 1570); Sixes v. Cole,

the instruction thus given squares pretty

much with Robichaud v. Ronan, Supra, ----

In Robichaud, it was Stated that when a

prosecuting attorney acts in some capacity

other than his quasi-judicial capacity,

then the reason for his immunity (integral

relationship between his acts and the

judicial process) ceases to exist and

if he acts in the role of a policeman,

he should be liable as a policeman.

Id.. at 1077-78.

Similarly, in Hilliard v. Williams, 465

F.2d 1212 (6th Cir., I572), cert. denied, 409

U.S. 1029 (1972), the Sixth Circuit refused to

shelter with immunity, a prosecuting attorney

who was charged with conduct clearly outside

his quasi-judicial capacity. The Court held

that the deliberate suppression of favorable

evidence by a prosecuting attorney, in

violation of plaintiff's constitutional rights,

was an act outside his quasi-judicial capacity

and beyond the scope of, “duties constituting

an integral part of the judicial process." Id.

at 1218,

The Eighth Circuit, in Rhodes v. Houston,

202 F. Supp. 624, (1962), aff°d per curiam,

309 F.2d 959 (8th Cir., 1962), cert. denied

372 U.S. 909 (1963), and the FourthCircuit in

Mccray v. Maryland, 456 F.2d 1 (4th Cir., 1972),

have also hela that a prosecuting attorney

may be liable in damages under Sections 1983

and 1985 when sued for acts committed in the

absence of jurisdiction (Rhodes v. Houston,

supra, at 630), or where an official is not

carted upon to exercise judicial or quasi-

sthetel discretion (McCray v. Maryland, supra,

at 3).

49 In McCray v. Maryland, supra, a prisoner

brought an action under the ET Rights Act

against a State Court clerk alleging negligence,

which impeded the filing of plaintiff's petition

for post-conviction relief. In the opinion the

Court discussed the doctrine of quasi-judicial

immunity. Id. at 3.

The disposition of this case by the Court

of Appeals for the Seventh Circuit is in

complete uniformity with the treatment of

analagous cases in the other Circuits. The

Court of Appeals ruled that the District

Court had erred in holding that the immunity

doctrine requires dismissal of the charges

against defendants, without trial. The

allegations were sufficient to entitle

Respondents to present proof for a factual

determination of the nature of the alleged

conduct, where defendants were charged with

conduct so clearly outside their quasi-

judicial capacities.50

B. The Court Of Appeals Correctly Held

That Petitioners Are Not Entitled To

Immunity As a Matter Of Law And The

Case Was Properly Remanded Because The

Sufficiently Pleaded Allegations Entitled

Respondents To Present Their Proofs.

The issue presented regarding the pro-

secutorial defendants is whether the alleged

conduct falls within the realm of their

50 Petitioners’ proclamation that the Seventh

Circuit Court of Appeals had made a factual

determination that defendant prosecutors’

activity was outside the scope of immunity

because it Was investigatory is patently

incorrect. (Petition of Hanrahan, et al., p-

10) The Seventh Circuit remanded this case

for a factual determination of this very issue.

The holding merely rejected dismissal of this

case before trial.

quasi-judicial duties.°+ The complaints

allegethat Petitioners Hanrahan and Jalovec,

along with 14 police officers, planned the

raid and agreed to use excessive force against

Hampton and other Respondents, as part of

an overall conspiracy to deprive Respondents

of their constitutional and statutory rights

and to discriminate against them because of

their race and political beliefs. Respondents

allege that Hanrahan and Jalovec were involved

in,"an extensive conspiracy to cause the false

arrest and imprisonment of the surviving

[Respondents], to institute an unfounded

prosecution, and to conceal the truth from

the public." Hanrahan and Jalovec are charged

with playing primary roles in preparing and

publicizing a falsified version of the raid.

(See Statement of the Case, supra, p. 5 )

These allegations do not merely charge

Petitioners with incorrectly executing their

authorized prosecutorial duties or with making

mistakes or errors in judgment in conducting

their quasi-judicial activities. Under any

reasonable construction of these complaints,

it is clear that they allege acts by defendant

state's attorneys which are unrelated to their

quasi-judicial duties. There can be no

authorization in law for state's attorneys to

plan and direct illegal raids as herein

described. Planning a raid where deadly

force was to be used and permitting the use

of deadly force as alleged here, cannot

conceivably be related to quasi-judicial

5 The Seventh Circuit did not resolve this

issue as petitioners suggest. (See fn.50 p.34)

For purposes of withstanding a motion to

dismiss, these allegations must be assumed to

be true.

am wen

functions. Likewise, the planning and

participation in a concerted effort to cover-

up the unlawful nature of the raid cannot be

an aspect of these prosecutors' quasi-

judicial functions.

The Seventh Circuit stated that "[a]t the

very least [the allegations charge] that

Hanrahan and Jalovec planned a raid in order

to obtain evidence of criminal activity."

(emphasis added) (Pet. 7a). The Court of

Appeals of course recognized that the allega-

tions against these Petitioners are far

broader and far more onerous than claims of

excesses in investigatory conduct. The

Seventh Circuit stated that these, “complaints

may be read to charge that [Petitioners]

deliberately planned to have the police officers

kill Hampton and Clark." (Pet. 8a) It was only

because the Seventh Circuit limited its review

with respect to each Respondent to the

question of, "whether any sufficient claim

for relief has been alleged,"°52 that the

Circuit did not construe the more onerous

and expansive allegations charging the plan-

ning of a murder. These allegations remain

in this case with their original force and

effect. (See, Statement of the Case, supra,

p. S$)

However, even when these allegations are

given their most narrow construction, such

52 Pet. 3a. The Seventh Circuit suggested

that Respondents had not urged this reading

of these complaints on the Court. Respondents

do not understand the source of this comment.

To the contrary, Respondents have consistently

urged the more severe reading of the allegations.

“investigative” pursuits are nowhere

authorized for Petitioners in the statutes of

Illinois.°32 The Illinois Revised Statute,

Ch. 14, sec. 5, limits the authority of

state's attorneys to quasi-judicial acts in

the course of proceedings before a court or

jury. Petitioners were not “using the

power for any of the purposes on whose

account it was vested in them," Gregoire v.

Biddle, 177 F.2d 579, 581 (2d Cir., 1545),

Cert. denied, 339 U.S. 949 (1950). According-

ly, the Seventh Circuit correctly ordered

that the facts with reference to the alleged

charges“be more fully developed at trial to

determine their truth.°

Prosecutors have been afforded immunity

for acts in the discharge of their quasi-

judicial duties because their primary

responsibility is essentially judicial--the

53 See I11. Rev. Stat. reprinted at p. 3

supra, of this brief.

54 tt is axiomatic that the allegations of

the complaints and the inferences to be

drawn therefrom must be construed most

favorably to the Respondents. See, Conley v.

Gibson, 355 U.S. 41, 45-46 (1957).

55 The trial court is the proper forum for

the determination of these factual issues,

See, e.g., Kauffman v. Moss, supra; Madison

v. Purdy, 410 F.2d 09 (5th Cir., 19695); Lewis

v. Brautigam, supra; Hilliard v. Williams,

Supra; Littleton v. Ber ng, supra; Vv.

Spokane Count Washington, supra; Robichaud

Vv. R Vald Black

- RONAN, Supra; ez V. ack, supra.

prosecution of the guilty and the protection

of the innocent. Griffen v. United States,

295 F. 437, 439-40 (srd Cir., 1924). in the

proper exercise of judicial duties, judicial

liability would detract from "principled and

fearless decision-making" and destroy the

independence of judicial officers by intimi-

dation. Pierson v. Ray, supra, at 554.

However, if the integrity oF the judiciary

is to be preserved, the concepts of "fearless

decision-making" and “judicial independence”

cannot be subverted so that quasi-judicial

officers are free to maliciously misuse their

powers in the manner alleged in this case.

"The privilege is not a badge or emolument of

exalted office but an expression of a policy

designed to aid in the effective functioning

of government." Barr v. Mateo, supra, at 572-

73. Petitioners implore this Court to clothe

them with an absolute and unprecedented

privilege, which would allow them to deliber-

ately and recklessly violate with impunity

the rights guaranteed to all citizens. This

Court cannot acquiesce in such a wholesale

suspension of constitutional guarantees.

The Civil Rights Statutes were enacted

specifically to protect citizens from the

kind of oppressive state action which Respon-

dents allege. See, Monroe v. Pape, 365 U.S.

167, 169-70 (1961). "Section ELE oe. was

intended to provide a remedy to persons

subjected to '[mJisuse of power, possessed by

virtue of state law and made possible only

because the wrongdoer is clothed with the

authority of state law,...'" Robichaud v.

Ronan, supra, at 536. No person, irrespective

of his official position, may, by design or

otherwise, subject a citizen to a deprivation

of any rights secured by the Constitution or

laws of the United States. Dombrowski v.

Pfister, 380 U.S. 479 (1965).

The fact that Petitioners are state's

attorneys does not relieve them of their

fealty to the Constitution and laws of the

United States. United States v. McLeod, 385

F.2d 734, 738 n.3 (5th Cir., 19607); lll. Rev.

Stat., ch. 14 §1 (1971); Ill. Rev. Stat.,

ch. 37 §72.2 (1971). “It does indeed go

without saying that an official, who is in

fact guilty of using his powers to vent his

spleen upon others, or for any other personal

motive not connected with the public good,

should not escape liability for the injuries

he may so cause ...." Gregoire v. Biddle, supra,

at 581.

In sum, this is not a case in which a

dissatisified litigant is, "sufficiently

irritated to institute an action against a

{judicial officer] for his judicial acts,"

ill-conceived, or incorrect judicial judgments.

Bradley v. Fisher, supra, at 348. Rather,

Respondents seek to redress the heinous

injuries they suffered at the hands of

Petitioners, whose alleged conduct finds no

statutory or constitutional sanction in the

prescribed powers and duties of prosecuting

attorneys.

The consequences of an unwarranted in-

trusion into the ongoing factual determination

of these allegations by this Court are ominous.

It would have the effect of transforming

judicial immunity into a prerogative of office,

thereby derogating a century of judicial

authority concerning the doctrine; stripping

the Civil Rights Act of its damage remedy;

denying citizens an opportunity to vindicate

their federally protected rights; and

encouraging public officials to act in

violation of the Constitution and the laws of

this nation with the guarantee that they will

not be liable to the victims of their

orticial misconduct.

THE COURT OF APPEALS CORRECTLY APPLIED

EXISTING LEGAL STANDARDS, AS ESTABLISHED

BY THIS COURT AND FOLLOWED BY THE CIRCUIT

COURTS, IN SUSTAINING LIABILITY IN CIVIL

CONSPIRACY FOR OFFICERS MULCHRONE,

ERVANIAN, MEADE, KUKOWINSKI, PURTELL,

KOLUDROVIC, SADUNAS, MELTREGER, SOROSKY,

HANRAHAN, AND JALOVEC.

The Court of Appeals held that the facts

alleged in Respondents' complaints were

sufficient to sustain a cause of action against

these Petitioners for the conspiracies

subsequent tg the actual planning and execution

of the raid.2® ‘This decision is consistent

with decisionsof other circuits and in accord

with the controlling decisions of this Court.

This Court has held that a cause of action

should withstand a motion to dismiss, unless,

assuming the facts alleged are true, “it appears

beyond doubt that the plaintiff can prove no

set of facts in support of his claim which

would entitle him to relief." Conley v. Gibson,

355 U.S. 41, 45-6 (1957). The Circuit Courts

have uniformly applied the standard to make

every effort to save a claim in construing the

facts alleged in a complaint, especially ina

Civil Rights action. Escalera v. New York Cit

Housing Authority, 425 F.2d 653, 55? (od Cir.,

1570), cert. denied, 400 U.S. 853 (1970); Scher

v. Board of Education, 424 F.2d 741 (3rd Cir.,

; Barnes v. Merritt, 376 F.2d 8 (5th Cir.,

1967); York v. Story, 324 F.2d 450, 453 (9th

Cir., 1563), cert. en. 376 U.S. 939 (1964).

Accordingly, the Seventh Circuit construed

Respondents’ complaints to allege, "an extensive

56 See Statement of the Case, supra, p. ll

SPAS RY LAS a OS ATER SNIP I INE ES PON GRRE A RETIN SAE St AREY BA ATR Ss a EE ROE: ” Ae

conspiracy to cause the false arrest and

imprisonment of the surviving plaintiffs,

the institution of an unfounded prosecution,

and the concealment of the truth from the

public." (See Statement of the Case, p. 12.)

The complaints clearly support this reading

of the facts. They categorically reject

Petitioners’ illfounded attempt to posit one

act committed by them in furtherance of the

overall conspiracy, to wit, perjury, as the

purpose of the conspiracy itself. (See.

Petition of the City of Chicago at 8)57

This Court has also determined the circum-

stances when factual allegations will be

legally sufficient to sustain a cause of

action under the Civil Rights Act. In Adickes

57 petitioners seek certiorari on the basis

of hypothetical and irrelevant questions as

to whether perjury constitutes a cause of

action under the Civil Rights Act. Perjury is

only one act allegedly committed in furtherance

of an overall conspiracy to cover-up flagrant

police misconduct and to prolong the illegal

prosecution of Respondents. The overall

conspiracy also allegedly involved other acts

such as obstructing and curtailing normal

investigation procedures and preparing false

laboratory and firearm reports. Petitioners'

reliance on Edwards v. Vasel, 349 F. Supp. 164

(E.D. Mo. 1972), aff'd per curiam, 469 F.2d

338 (8th Cir., 1972), is unfounded because the

defendant policeman was only accused of perjury

and because he had already been exonerated of

the same charge in two previous judicial

proceedings. It was also found that the police

officer was not acting under color of state

law, but rather he was found to be acting in

his individual capacity. The instant allega-

tions allege actions undertaken under color

of law. Id. at 165-66.

v. S. H. Kress & Co., 398 U.S. 177 (1970),

the Court sustained a civil conspiracy cause

of action in the face of a motion to dismiss

by summary judgment. The Court stated: "In

this case ... we hold that respondent failed

to show conclusively that the fact alleged

by petitioner was ‘not susceptible' of an

interpretation that might give rise to an

inference of conspiracy." Id. at 160 n. 22.

The Court of Appeals applied this legal

standard, effectively rejecting Petitioner's

arguments before this Court, when it suggested

that to require the proof of causation and

injury Petitioners seek would be to require

Respondents to plead their evidence. (Pet. 9a)

A complex network of substantive facts are

alleged which, if assumed to be true, would

reasonably permit a jury to infer the existence

of the conspiracy alleged. The issues raised

by the Petitioners as to causal connection>8

58 petitioners rely on Duncan v. Nelson, 466

F.2d 939 (7th Cir., 1972), to argue that the

indictment of Respondents was a superceding

cause which exonerated Petitioners from lia-

bility. However, in Duncan, enough evidence

existed to convict without the illegal

evidence obtained from the police defendant.

Petition of City of Chicago, et al., p. ll.

Respondents here allege that their detention

would not have continued and‘ an indictment would

not have beensecured without Petitioners’ cover-

up of the underlying police misconduct. (See

Statement of the Case, supra, pP- 13-15.)

The police were also exonerated in Duncan

because the superceding judicial action in

admitting the illegally-obtained confession

into evidence was not forseeable by the police.

Respondents here allege Petitioners clearly

foresaw and even intended that their cover-up

of police misconduct would result in an

indictment of the Respondents.

and extent of the injury? are also questions

for the finder of fact. (Pet. 9a) All these

fact questions are at least, ""susceptible of'

an interpretation which might give rise to an

inference of conspiracy." Adickes v. S. H.

Kress & Co., supra, at 160 n.22. The

59 petitioners rely on Symkowski v. Miller, 294

F. Supp. 1214 (E.D. Wis., 1969), to argue that a con-

spiracy action cannot lie where there is no

conviction and no knowing use of the perjured

testimony. However, the facts in Symkowski

are inapposite. Plaintiff only alleged perjury

by the police at a trial in which he was

acquitted of criminally reckless conduct after

having mistakenly shot one of the policemen.

In contrast, Respondents here allege perjury

was only one act in furtherance of the overall

conspiracy directed toward continuing a blat-

antly illegal arrest, detention, and prosecu-

tion as well as to cover-up the illegal character

of the raid.

60 Petitioners argue that no set facts could

prove a conspiracy by these Petitioners on the

facts alleged because they cannot be held

liable for concealment of facts they do not

fully possess. However, the destruction of

evidence by the policemen who participated in

the raid does not absolve these Petitioners

from liability for knowingly obstructing,

curtailing, and distorting investigation and

analysis of the remaining evidence, or for

distorting and falsifying tests of the veracity

of the accounts given by the participating

policemen. Because the Crime Laboratory and

IID Petitioners are alleged to have conspired

with Petitioners Hanrahan and Jalovec, the

complaints charge that the Crime Laboratory

and IID Petitioners knew of the inadequate

investigation of the premises and destruction

of evidence and the overall plan to conceal

the nature of the raid.

seventh Circuit decision should therefore not

be reviewed by this Court. Adickes v. S. H.

Kress & Co., Id.

Considering the heinous nature of the

sufficiently pleaded facts it was necessary

for the Seventh Circuit to sustain the cause

of action against these Petitioners. This

honorable Court should affirm this decision

by denying Certiorari in this case.

III. PETITIONER SEEKS TO AVOID THE

APPLICATION OF ILLINOIS TORT LAW

INVOKED IN RESPONDENT BREWER'S

DIVERSITY CLAIMS, WHICH PROVIDES FOR

THE LIABILITY OF PETITIONER CITY OF

CHICAGO FOR THE WILLFUL AND WANTON

ACTS OF ITS EMPLOYEES.

Apart from her Civil Rights claius,

Respondent Brewer sued the several Petitioners

for various Illinois common law torts. To

do so, she invoked the diversity jurisdiction

of the District Court. The Court of Appeals,

in reversing the District Court, held that

the allegations in the Brewer complaint

constituted sufficient causes of action, not-

withstanding Petitioner's claims that the

Illinois Local Governmental and Governmental

Employees Tort Immunity Act (Ill. Rev. Stat.

Ch. 85 §§ 1-101 et seq.) would preclude

liability for the City of Chicago.

It is clear from the facts of this case

that the Illinois Tort Immunity Act does not

grant immunity to the City of Chicago.

60 See B 59-B 66.

61 the only relevant situation where a

municipality would properly be immune from

suit is set forth in §2-109 of the Illinois

Local Governmental and Governmental Employees

Tort Immunity Act:

§2-109. Acts or Omissions.

A local public entity is not liable for

an injury resulting from an act or

omission of its employee where the employee

is not liable.

The pertinent question then becomes when

is an employee immune from suit. Later sections

of the act make this clear:

(footnote 61 continued on next page)

(Footnote 61 continued from previous page)

§2-201. Determination of policy or

exercise of discretion.

Except as otherwise providec by Statute,

a public employee serving in a position

involving the determination of policy or

the exercise of discretion is not liable

for an injury resulting from his act or

omission in determining policy when acting

in the exercise of such discretion even

though abused.

§2-202. Execution or enforcement of law.

A public employee is not liable for his

act or omission in the execution or enforce-

ment of any law unless such act or omission

constitutes willful and wanton negligence.

§2-208. Institution or prosecution of

judicial or administrative proceeding.

A public employee is not liable for

injury caused by his instituting or

prosecuting any judicial or administrative

proceeding within the scope of his employ-

ment, unless he acts maliciously and without

probable cause.

§2-201 does not afford immunity to Petitioner,

because Respondents allege acts outside the

discretion of any of the City employee Petition-

ers.

§2-202 does not afford immunity to Petitioner,

because Respondents allege 1) acts in violation

of the law and 2) willful and wanton misconduct.

§2-208 does not afford immunity to Petitioner,

because Respondents allege the employee Peti-

tioners 1) acted outside the scope of their

employment and 2) acted maliciously and without

probable cause.

(footnote 61 continued on next page)

Due perhaps to a recognition that this is

true, no specific section of the Statute is

cited in the City of Chicago's Petition which_on

these facts would grant immunity to the City.

Not only the words, but the purpose of the

Tfootnote 61 continued from previous page)

Since the Tort Immunity Act outlines

specific instances where government employees

can claim immunity, and since Petitioner does

not cite any section which would grant immun-

ity for willful and wanton misconduct outside

the scope of one's employment, it follows by

the rule of statutory construction, expressio

unius est exclusio alterius, that for such

Conduct there must be liability. The Illinois

courts have frequently applied this rule of

construction where there is doubt as to the

meaning of a statute and where legislative

intent cannot be gleaned. See, e.g., Nelson

v. Union Wire Rope Corp., 32 Ill. 2d 69,

199 N.E. 20 709, 106 T1964) , and Savings Ass'n

v. International Ins. Co., 17 Ill. 2d 609,

; N.E. 5 6 (1959).

However, this Court need not rely on this

rule of construction in the instant case,

since there can be no doubt as to the inten-

tion of the Illinois Legislature in passing

the Tort Immunity Act. See nn. 63 & 64,

infra.

62 In fact, nowhere in its brief does

Petitioner put the words of the Tort Immunity

Act before this Court for its consideration.

“Port Immunity Act® ‘shows’ conclusively” that

the City is totally unjustified in citing

eee ao

63 the purpose of the Act is explained in

Luker v. Nelson, 341 F. Supp. 11l, 117-118

(N.D. Lill. LO?2):

The Act was adopted in 1965 immediately

after the Illinois Supreme Court had

eliminated the last vestige of the

doctrine of governmental immunity, Harvey

v. Clyde Park District, 32 I1l. 2d 60,

203 N.E. 2a 573 (1965), and waS intended

"to salvage certain protections for public

entitles some of which had found them-

selves subject to suit for the first time."

Ritsema-Millgard, Inc. v. Michael J. Mc-

Dermott & Company, 295 F. Supp. 180 (N.D.

Ill. 1969).

... [T]he language and legislative history

of the Governmental Tort Immunity Act

indicate that the Illinois legislature

ntended to confine its scope to suits ...

soe which municipalities had just become

@..-.- (emphasis adde

Since before the passage of the Tort Immunity

Act, immunity in Illinois was conditioned upon

a showing of good faith (See, e.g., Baum,

"Tort Liability of Local Governments and Their

Employees: An Introduction to the Illinois

Immunity Act," 1966 Univ. of Ill. L.F. 981,

1003, and cases cited therein), and given the

purpose of the act (as stated in both Luker

and Ritsema-Millgard, supra), it follows that

the Illinois Legislature da not intend to

grant immunity for acts comm

such as Respondents allege, because for such

acts immunity had never before existed.

-__ ef 2 @e

itted in bad faith

——oe

SRE ALT ay SF RY AT IER dy

TSR : a

- Nos 5 WES SREELAT LT RIC .

ss aie _ -" = ~

generally to the Act to support its claim

of immunity, since conduct not specifically

immunized by the Statute is necegsarily

subject to claims of liability.

As correctly construed by the Court of

Appeals, the relevant Illinois case law does

64 See, e.g., Comments, "Illinois Tort Claims

Act: A New Approach to Municipal Tort Immunity

in Illinois," 61 NW.U.L.Rev., 265, 281 (1966-

1967), where the author states,

The Illinois statute ... is based on the

roposition that there is no local

governmental tort immunity; local govern-

mental units are fully liable. *** Then

--- the Illinois act provides as exceptions

that many functions of municipal corporations

will be immune from suit. ... [I]n Illinois

liability is imposed under the same rules

caattcaes in private tort actions subject

to the immunity exceptions provided for in

the act. lauphasts added)

The above analysis is convincing, given the

purpose of the act (See n.63, supra.). The

Illinois Legislature, cognizant that all

immunity had been wiped out by the Illinois

Supreme Court, carefully set forth specific

instances where it determined immunity should

continue to exist. The Legislature realized

that where it did not clearly and specifically

provide for immunity, there would necessarily

be liability.

Finally, €@ recent Illinois Supreme Court

decision lends further support for Respondents'

position. Reynolds v. City of Tuscola, 48

Ill. 2d 339, EL N.E. 2d Ts (1571), holds

that the Tort Immunity Act must be strictly

construed against public defendants.

-. -net .grant .immunity to Petitioner. an.the. ........ .

diversity claims.65 Moreover, this case law, :

as well as the analysis of it by the Court

of Appeals, is completely misstated in the

Petition for Certiorari.

65 In fact, the Illinois case law strongly

suggests liability where bad faith or willful

and wanton misconduct is alleged. See, e.g.,

Young v. Hansen, 118 Ill. App. 2d 1, 8, 249

N.E. 2d 300, 304 (2d District 1969) ("... [T]he

immunity afforded by section 2-201 ... extends

only to those types of acts not resulting from

corrupt or malicious motives.") See, also,

Mancha v. Field Museum of Natural ess 5

- PP. ’ ’ oie ’ 2

(lst District 1972); Wexell v. Scott, 2 Ill.

App. 3d 646, 647, 276 N.E. 20 735, 736 (3d

District 1971); Woodman v. Litchfield Comn.

School Dist. No. 12, 102 Ill. App. 2d 330, 334,

eE. ’ 2 (5th District 1968); and

Fustin v. Bd. of Ed. of Comm. Unit Dist. No. 2,

101 Iii. App. 2q 113, 121, 242, N.E. 2a 308,

312 (5th District 1968).

66 Petitioner characterizes as "unrelated,"

certain cases cited in the Court of Appeals

decision (See Pet. lla), specifically Mills

v. County of Winnebago, 104 I11. App. 2d 366,

244 N.E. 24 65 (oa Sistrict 1969), Arnolt v. i

City of Highland Park, 52 Ill. 2d 27, 282 N.E. }

2d er T1393) and Krieger v. Villege of i

Ca ntersville, 8 Til. App. 3d 243, 289 N.E. ;

2a Fat (2d District 1972), even though all

three cases deal with the question of muni-

cipal tort liability. Recognizing the

detrimental effect these decisions would have

on its argument, Petitioner also refers to them

as "early statements" in the "developing body"

of Illinois immunity case law. However, the

decision in Mills was rendered in 1969, while

Arnolt and Krieger were both decided in 1972.

(footnote continued on next page)

- «-. -The most .recent .Illinois. Supreme Court... -......

decision construing the Tort Immunity Act

is Arnolt v. City of Highland Park, supra.

While not precisely on point, that decision

strongly suggests that faced with the facts

of the instant case, the Illinois Supreme

Court would undoubtedly hold a municipality

liable. In Arnolt, plaintiff, on the basis

of the Tort Immunity Act, sued the City and

a policeman for ordinary negligence and for

willful and wanton misconduct. The trial

court dismissed all parts of the complaint

dealing with ordinary negligence, but let

stand all claims alleging willful and wanton

misconduct. On plaintiff's appeal, defendants

did not even challenge those sections of the

complaint concerning willful and wanton miscon-

duct, presumably since they recognized that

for such conduct it would be unquestionable

that liability would lie. The Supreme Court

of Illinois did not make even the faintest

suggestion that the trial court should have

dismissed those portions of the complaint

dealing with willful and wanton misconduct.

On the contrary, the Court stated:

(footnote 66 continued from previous page)

Petitioner implies that the Court of Appeals

relied on Mills, supra, and suggests that a

proper reading of that case actually would

Support its own position. However, the Court

of Appeals did not rely on the Mills decision.

That case was cited only to demonstrate to

the District Court (which had relied on Mills)

that the case was no longer good law.

Petitioner implies that the Court of Appeals

relied on Krieger, Supra, to decide the scope

of the Tort Immunity Act. However, Krieger was

cited only because that case explicite y recog-

nized that Mills, supra, had been overruled sub

silentio by Arnolt, supra. Also, it is note-_

worthy that the same district that had decided

Mills, recognized in Krieger that Mills was no

Ionger good law.

ere

o:-c ome (Bleotion 2e202.ef.thee TEOEE « .2-2 oc ccse- o-

Immunity Act provides immunity where

the public employee commits an act or

omission while actually "in the

execution or enforcement of any law”

unless such act or omission constitutes

willful and wanton negligence. (emphasis

added) Id. at 33, 147.

Respondents can only conclude that Petitioner

has blatently and intentionally misstated the

relevant Illinois law on immunity to avoid the

obviously correct decision on this issue by

the Court of Appeals.

eee eM NTT OTT RTOS eS 7

67 tt is interesting to note that on the 5

diversity claims, the County of Cook and all

the other County defendants have an equal claim

to Tort Immunity Act defenses raised by

Petitioner City of Chicago. Nevertheless,

these other defendants chose not to seek

review from the Court of Appeals decision

construing the statute. The conclusion is

irresistible that these defendants recognized

the frivolous nature of the City's defense

to the diversity claims.

Sele «8 a de ow le ees (as aa a ce ks a oe ee ee

This Court should deny the Petitions for

Writs of Certiorari and thereby decline to

review the decision of the Court of Appeals

of the Seventh Circuit. The Court of Ap-

peals properly recognized that the vindica-

tion of critical Civil Rights by the federal

courts leaves no room for labeling the al-

leged conduct of these State's Attorney

Petitioners as "quasi-judicial." The com-

plaints allege that these State's Attorneys

planned and executed murders and other

wholesale deprivations of Civil Rights by

using their "quasi-judicial" office as a

license for lawless vigilante activity. The

allegations clearly justify the conclusion

of the Seventh Circuit that, "the prosecutor

certainly may not order subordinates to kill

or punish a free citizen without a trial,"

and then invoke the doctrine of "quasi-

judicial" immunity to avoid even the possi-

bility of liability. The only just result

is for this Court to concur with the Seventh

Circuit in the recognition that, "the State's

Attorneys' alleged participation in the plan-

ning and execution of a raid of this charac-

ter has no greater claim to complete imnun-

ity than the activities of police officers

allegedly acting under his direction.”

Vindication of the rights involved necessi-

tates that the trial go forward in the Dis-

trict Court, so that these Petitioners may

be promptly tried along with their police

officer subordinates.

The complaints also plainly allege that

the seven additional police officer Peti-

tioners and two additional State's Attorneys,

“joined with Hanrahan and Jalovec and the

14 participating officers in an extensive

conspiracy to cause the false arrest and im-

prisonment of the surviving plaintiffs, the

Court.

Of Counsel and

on the Brief:

WILLIAM J. BENDER

Rutgers University

School of Law

Constitutional

Litigation Clinic

175 University Ave.

Newark, New Jersey

institution of an unfounded prosecution and

Goncéalment’ 6f thé truth’ from “tne ‘pubiic:" -

These allegations, likewise clearly suffi-

cient on their face, can only be resolved

by trial in the District Court.

The allegations of the complaints amply

fulfill the pleading requirements of the

controlling decisions of this Court and

sufficient causes of action are set forth

as to all Petitioners.

Court should leave the decision of the Court

of Appeals undisturbed and allow prompt

determination of this most serious of Civil

Rights damages actions in the District

Therefore, this

Respectfully submitted,

WILLIAM J. BENDER

Rutgers University

School of Law

Constitutional Litiga-

tion Clinic

175 University Avenue

Newark, New Jersey

ARTHUR KINOY

Center for Constitu-

tional Rights

853 Broadway

New York, New York

DAVID SCRIBNER

-50 Broadway

New York, New York

JEFFREY HAAS

DENNIS CUNNINGHAM

FLINT TAYLOR

2156 N. Halsted Street

Chicago, Illinois

Sem 6 ese «6 & 6s) Sao ce” se nnn «. & + oes

407 South Dearborn

Chicago, Illinois

Attorneys for

Respondents*

Dated:

* Attorneys for Respondents gratefully ac-

knowledge the assistance of the following

members of the Constitutional Litigation

Clinic of Rutgers Law School in preparation

of this brief: students, Jack Feinstein,

Scott Rogge, Deborah Ross and Marci Seville;

staff, Deena Atlas and Valerie Feltey.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.