Opinion
Case No. 00-cv-4078-JPG.
May 30, 2001.
MEMORANDUM AND ORDER
This matter comes before the Court on defendant Lieutenant Steven Crow's ("Crow") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 52). Plaintiffs Douglas Bell ("Mr. Bell") and Tammy Bell ("Mrs. Bell") (collectively, "the Bells") have responded to the motion (Doc. 61).
I. Background
This § 1983 action stems from an April 2, 1999, incident in which Mr. Bell was arrested by Crow and defendant Master Sergeant Mike Irwin ("Irwin"), who are employees of the Illinois State Police. The Bells allege that in the course of the arrest Irwin fired four Deftec brand bean-bag rounds from a 12-gauge shotgun at point blank range at Mr. Bell's head when Mr. Bell posed no threat to anyone. The Bells claim that the use of such force in Mr. Bell's arrest was excessive and therefore violated Mr. Bell's rights under the Fourth Amendment to the U.S. Constitution, which forbids unreasonable seizures. The Bells allege that Crow authorized Irwin to use such force, which the Bells allege is known to be lethal, without giving proper instruction about the circumstances in which it should be used. They also allege that Crow failed to intervene and prevent Irwin's use of excessive force once he became aware that it was being used. Mrs. Bell claims that as a result of the defendants' battery of her husband, she has suffered a loss of his love, society, affection and consortium.
In his motion to dismiss, Crow asserts a variety of defenses. First he argues that he cannot be liable for Irwin's acts based on the theory of respondeat superior. He also argues that he is entitled to qualified immunity, that Mr. Bell fails to state a claim against him under the Fourth Amendment and that Mr. Bell's Third Amended Complaint violates several procedural rules. With respect to Mrs. Bell's claim, Crow asserts that because her claim derives from her husband's it must be dismissed with his and that he is entitled to public officials' immunity.
II. Standard
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations as true and draws all reasonable inferences in favor of the non-moving party. Holman v. Indiana, 211 F.3d 399, 402 (7th Cir. 2000). The Court should not grant the motion to dismiss unless it appears beyond doubt that the plaintiff cannot prove his claim under any set of facts consistent with the complaint. Id. at 405.
Generally, courts will not grant a motion to dismiss merely because the complaint is vague or lacking in detail. Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985). A complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing. Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998); American Nurses' Ass'n v. State of Illinois, 783 F.2d 716, 727 (7th Cir. 1986). Nor must it allege all, or any, of the facts logically entailed by the claim. Bennett, 153 F.3d at 518; American Nurses', 783 F.2d at 727. Nonetheless, the complaint must provide a short and plain statement of the claim sufficient to fairly put the defendant on notice of the claim and its basis. Leatherman v. Tarrant Co. Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993); see also Fed.R.Civ.P. 8(a). "[A] plaintiff may not 'fumble around searching for a meritorious claim within the elastic boundaries of a barebones complaint.'" Dausch v. Rykse, 52 F.3d 1425, 1430 (7th Cir. 1994) (quoting Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1430 (7th Cir. 1993)). A plaintiff need not plead facts, as long as the conclusions pled give the defendant minimal notice of the claims. Kyle v. Morton High Sch., 144 F.3d 448, 455 (7th Cir. 1998). The court must be able to understand the gravamen of the plaintiff's complaint. Id.
III. Analysis
A. Supervisory Liability
Crow argues that he cannot be liable under § 1983 because he cannot be liable under a theory of respondeat superior based on the actions of a subordinate, Irwin. He argues that Mr. Bell has not pled facts sufficient to show that Crow was personally involved in any unconstitutional conduct that Irwin may have committed.
"Liability under § 1983 must be premised on personal involvement in the deprivation of the constitutional right, not vicarious liability." Payne v. Churchich, 161 F.3d 1030, 1042 n. 15 (7th Cir. 1998), cert. denied, 527 U.S. 1004 (1999); see Davis v. Zirkelbach, 149 F.3d 614, 619 (7th Cir. 1998), cert. denied, 525 U.S. 1121 (1999). The doctrine of respondeat superior cannot be used to impose liability on a supervisor for a subordinate's unconstitutional actions. Lanigan v. Village of E. Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997). However, a supervisor may be liable if he is somehow personally involved in the subordinate's conduct, either by commission or omission of an act. Id.; Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988). A supervisor is not personally involved if he is merely negligent, even grossly negligent, in failing to detect and prevent a subordinate's misconduct. Lanigan, 110 F.3d at 477; Jones, 856 F.2d at 992. However, a supervisor is personally involved if he knows about the unconstitutional conduct and facilitates, approves, condones or deliberately turns a blind eye to a subordinate's constitutional violation. Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997); Lanigan, 110 F.3d at 477; Jones, 856 F.2d at 992. To be liable a supervisor must act either knowingly or with deliberate, reckless indifference. Lanigan, 110 F.3d at 477; Jones, 856 F.2d at 992-93. Mr. Bell's allegations call to mind two particular situations in which a supervisor may be personally involved and may be liable under § 1983 for Fourth Amendment violations. First, a supervisor may be liable because he exhibits deliberate indifference to the danger posed by an armed officer when the supervisor fails to instruct that officer that he is not to use deadly force except to prevent a killing or the infliction of other great bodily harm. Pena v. Leombruni, 200 F.3d 1031, 1033 (7th Cir. 1999) (citing City of Canton v. Harris, 489 U.S. 378, 390 n. 10, (1989)), cert. denied, 530 U.S. 1208 (2000). Second, a supervisor may also be liable because he has reason to know that a subordinate officer is using excessive force, he has a realistic opportunity to intervene to prevent the harm and he fails to do so. Lanigan, 110 F.3d at 477; Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).
The Court has reviewed the Third Amended Complaint and finds that Mr. Bell has sufficiently alleged Crow's personal involvement in the incident at issue. He alleges that Crow failed to give Irwin sufficiently specific instructions on the use of force against Mr. Bell when he instructed him to fire lethal Deftec bean-bag rounds if Mr. Bell became "threatening." (Ct. II, ¶ 5). He also alleges that Crow failed to intervene after he became aware that Irwin had fired the first Deftec bean-bag at Mr. Bell at point blank range and failed to protect Mr. Bell from further use of excessive force by Irwin (Ct. II, ¶ 8). Under a set of facts consistent with the allegations in the Third Amended Complaint, Mr. Bell may be able to prove that Crow failed to properly instruct Irwin in the use of deadly force and failed take advantage of a realistic opportunity to intervene to prevent Irwin's use of excessive force of which Crow was aware. Therefore, Mr. Bell's allegations sufficiently plead Crow's personal involvement, and the Court will not dismiss Mr. Bell's § 1983 claim against Crow on those grounds.
B. Qualified Immunity
Crow raises the affirmative defense of qualified immunity. Qualified immunity is an affirmative defense that shields government officials from liability for civil damages where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir. 2000). It applies only to officials who occupy positions with discretionary or policymaking authority and who are acting in their official capacities. Harlow, 457 U.S. at 816; Denius, 209 F.3d at 950.
The Court applies a two-step analysis to determine whether an official is entitled to qualified immunity. First, the Court determines whether the plaintiff states a violation of a constitutional or statutory right. Wilson v. Layne, 526 U.S. 603, 609 (1999); Denius, 209 F.3d at 950. The plaintiff bears the burden of demonstrating that a right has been violated. Bleavins v. Bartels, 243 F.3d 393, 397 (7th Cir. 2001). In the interest of promoting clarity in legal standards, the Court should decide this question even if the officer is clearly immune because the second part of the test is not met. Wilson, 526 U.S. at 609; Denius, 209 F.3d at 950.
Second, the Court must determine whether that right was sufficiently clear at the time of the violation that a reasonable official would have understood that what he was doing violated that right. Wilson, 526 U.S. at 609; Anderson v. Creighton, 483 U.S. 635, 640 (1987); Denius, 209 F.3d at 950. The plaintiff also bears the burden of demonstrating that the right is clearly established. Bleavins, 243 F.3d at 397; Denius, 209 F.3d at 950. To determine whether the right was clearly established, this Court looks to Supreme Court and Seventh Circuit Court of Appeals decisions, then, if there is no controlling precedent, to all relevant caselaw to determine if there is a clear trend. Denius, 209 F.3d at 950-51. "Qualified immunity is dissolved, however, if a plaintiff points to a clearly analogous case establishing a right to be free from the specific conduct at issue or when the conduct is so egregious that no reasonable person could have believed that it would not violate clearly established rights." Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640 (citations omitted). In other words, Mr. Bell need not point to a case specifically about firing Deftec bean-bag rounds from a 12-gauge shotgun at point blank range; cases about the use of deadly or excessive force are sufficient.
1. Instructions on Use of Deadly Force
Mr. Bell alleges that Crow violated his Fourth Amendment rights by failing to instruct Irwin properly in the use of deadly force. Crow argues that he is entitled to qualified immunity from such liability because the applicable Fourth Amendment right was not so clearly established on April 2, 1999, that a reasonable officer in Crow's position would have known that instructions like those Crow gave to Irwin would violate a person's constitutional or statutory rights under the facts alleged. He does not contest the fact that a supervisor's delinquent instruction on the use of deadly force that leads to the actual and unconstitutional use of deadly force on an individual is a violation of the individual's Fourth Amendment right to be free from unreasonable seizure. Therefore, as noted in Part III.A. of this order, the Court finds that Mr. Bell has stated a violation of a constitutional right and will move on to the second inquiry. See, e.g., City of Canton v. Harris, 489 U.S. 378, 390 n. 10, (1989).
The Court finds that the right to be free from the alleged seizure was sufficiently clear on April 2, 1999, that a reasonable officer would have understood that his failure to instruct a subordinate in the proper use of deadly force would violate that right. In 1999 it had long been established that an individual's Fourth Amendment rights are violated when an officer uses deadly force against him where there is no probable cause to believe he poses a threat of serious physical harm. Tennessee v. Garner, 471 U.S. 1, 11 (1985). It had also been long established that if a supervisor knows about unconstitutional conduct and facilitates, approves or condones it, or if the supervisor deliberately turns a blind eye to it, the supervisor also violates those Fourth Amendment rights. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). The Supreme Court paired these two principles in City of Canton v. Harris, 489 U.S. 378 (1989), in which it held that the need to properly instruct officers in the use of deadly force according to the principles set forth in Garner can be "'so obvious,' that failure to do so could properly be characterized as 'deliberate indifference' to constitutional rights." Harris, 489 U.S. at 390 n. 10. These cases clearly establish as early as 1989 that a supervisor's failure to properly instruct a subordinate to use deadly force only when there is probable cause to believe that an individual poses a threat of serious physical harm renders the supervisor liable under § 1983 for violation of the individual's Fourth Amendment rights for harm that occurs because of the subordinate's actual use of deadly force. In 1999, a reasonable officer would have been aware of this.
2. Failure to Intervene
Mr. Bell also alleges that Crow violated his Fourth Amendment rights by failing to intervene to prevent Irwin's use of excessive force toward Mr. Bell. Crow argues that he is entitled to qualified immunity from such liability because Mr. Bell has failed to state a constitutional violation against him. Specifically, Crow claims that Mr. Bell failed to plead facts showing that he knew about Irwin's unconstitutional conduct and facilitated, approved or condoned it, or that he deliberately turned a blind eye to it. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). He also faults Mr. Bell for failing to plead that Crow had a reasonable opportunity to intervene to prevent Irwin's actions.
This argument closely tracks Crow's respondeat superior arguments discussed in Part III.A. The Court reiterates that, in light of liberal federal notice pleading standards, the Court finds that the absence of specific facts surrounding the April 2, 1999, incident is not fatal to Mr. Bell's claim at this stage of the litigation, although those facts may ultimately show that Mr. Bell is not entitled to relief. Mr. Bell pled that Crow was aware of Irwin's use of excessive force after the first bean-bag shot and that he failed to intervene to prevent further use of such force. Viewing the facts and drawing the inferences in favor of Mr. Bell, the Court finds that, consistent with these facts, Mr. Bell may be able to prove that Crow facilitated, approved or condoned it or deliberately turned a blind eye to it by failing to take advantage of a realistic opportunity to stop the succeeding bean-bag shots. Those are factual questions to be decided later in the litigation and need not be pled with specificity in the Third Amended Complaint.
Crow also faults Mr. Bell for failing to plead that he was unjustifiably arrested. This argument is based on a misreading of Yang v. Hardin, 37 F.3d 282, 28 5 (7th Cir. 1994). Yang holds that before an officer can be held liable for failure to interve ne, the plain tiff must p rove (1) excessiv e force, (2) unjustifiab le arrest or (3) another constitutional violation. Crow incorrectly states that all three elements must be proved. Since Mr. Bell has alleged the use of excessive force, he need not plead or prove unjustifiable arrest.
The right to be free from the alleged seizure was sufficiently clear on April 2, 1999, that a reasonable officer would have understood that his failure to intervene to prevent the use of excessive force against a non-threatening individual where he had the opportunity to do so would violate that right. See Lanigan v. Village of E. Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). As noted above, the use of excessive force was clearly unconstitutional at the time. Yang clearly established as early as 1994 that an officer's failure to intervene to prevent another officer from committing a constitutional violation, including the use of excessive force, when he had the opportunity to do so renders that officer liable for that violation under § 1983. Lanigan applied this rule in 1997. In light of these and other cases, the Court finds that a reasonable officer in 1999 would have been aware of this rule.
For the foregoing reasons, the Court cannot say at this time that Crow is entitled to qualified immunity and will not dismiss Count II on those grounds.
C. Rule 8(a)
The Court need not address Crow's argument that Mrs. Bell's state law loss of consortium claim against him be dismissed as derivative of her husband's § 1983 claims in view of the fact that the Court has declined to dismiss Mr. Bell's claims at this time.
D. Public Officials' Immunity
Crow argues that he cannot be liable to Mrs. Bell because of the common law doctrine of public officials' immunity. Mrs. Bell responded with a discussion of the Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"), 745 ILCS 10/1-101, et seq. However, that statute does not apply in this case. The Tort Immunity Act provides immunity to local governments and local governmental employees but not to state employees like Crow. See 745 ILCS 10/1-101.1(a). Furthermore, the Tort Immunity Act applies different standards than the public officials' immunity doctrine and cannot be interchanged with it. Michigan Ave. Nat'l Bank v. County of Cook, 732 N.E.2d 528, 543-44 (Ill. 2000); Kinzer ex rel. Chicago v. City of Chicago, 539 N.E.2d 1216, 1220 (Ill. 1989).
The doctrine of public officials' immunity is a common law doctrine that protects public officials from personal liability for the good faith performance of their discretionary duties. Currie v. Lao, 592 N.E.2d 977, 983-84 (Ill. 1992) (citing Mora v. State, 369 N.E.2d 868 (Ill. 1977)); see Michigan Ave. Nat'l Bank, 732 N.E.2d at 543-44.
The doctrine is premised upon the principle that a public decisionmaker should not be subject to personal liability where he makes a decision based upon his perception of the public needs. The immunity attaches only to conduct by a public official that is discretionary, rather than ministerial, in nature. Further, it is well established that public officials' immunity does not apply to every discretionary act by an official but rather only to those acts which are unique to the particular public office.Currie, 592 N.E.2d at 984 (citations omitted); accord Michigan Ave. Nat'l Bank, 732 N.E.2d at 43-44. "Public official immunity is granted because a good-faith mistake in judgment ought not to subject a public decisionmaker to a lawsuit." Midamerica Trust Co. v. Moffatt, 511 N.E.2d 964, 967 (Ill.App.Ct. 1987). In deciding whether public officials' immunity applies, the critical question is whether the employee's conduct was discretionary or merely ministerial. McKay v. Kusper, 624 N.E.2d 1140, 1148 (Ill.App.Ct. 1993).
After reviewing the Third Amended Complaint, the Court cannot say with certainty that Crow is entitled to public officials' immunity under Illinois common law. It is clear that Crow was performing discretionary duties that were uniquely related to his particular public office in the April 2, 1999, incident as alleged by the Bells. It is less clear, however, that the performance of those duties was in good faith. At this stage of the proceedings, the Court must accept all allegations in the Third Amended Complaint as true, including the allegation that Mr. Bell posed no threat to anyone. If Mr. Bell was not threatening at the time, there was no need to use anything beyond de minimus force to effect his arrest. Thus, the use of deadly force to subdue him raises the question of whether the force was used, or in Crow's case, authorized or allowed to continue, in good faith. See, e.g., Williams v. City of Elgin, NO. 98 C 6140, 1999 WL 688711, at *3 (N.D.Ill. Apr. 15, 1999). Because Mrs. Bell may be able to prove that Crow acted in bad faith by using more than de minimus force, the Court cannot dismiss Count IV based on public officials' immunity at this time.
IV. Conclusion
For the foregoing reasons, the Court finds that, accepting all allegations as true and drawing all reasonable inferences in favor of the Bells, the Bells may be able to prove their claims under a set of facts consistent with the Third Amended Complaint. Accordingly, the Court hereby DENIES Crow's motion to dismiss (Doc. 52).
IT IS SO ORDERED.