Opinion
No. 01 C 2621
February 13, 2003
MEMORANDUM
In this action brought by LaRue and Catherine Hood against the City of Chicago ("City") and several of its police officers, one of those officers — Jason Jones ("Jones") — has until recently been entitled to a stay by reason of his military service. With that service now completed, Jones has just filed his Answer and Affirmative Defenses ("ADs") to the Amended Complaint. This memorandum order is issued sua sponte to address some problems posed by the ADs.
To begin with, A.D. 1 persists in the practice followed by the Chicago Corporation Counsel's office (among others) of invoking qualified immunity even though plaintiffs advance a Fourth Amendment claim of the infliction of excessive force of a type that, if it in fact occurred, would unquestionably infringe that constitutional right. Because that is the case, it would inexorably fall to the lot of a factfinding jury to determine whether plaintiffs' or Jones' version of events was accurate — and that evidentiary hearing and determination would necessarily subsume the contention in A.D. 1 that would constitute a precondition to granting Jones and his fellow officers qualified immunity. Accordingly A.D. 1 would have to be stricken to that extent, because Jones has already placed plaintiffs' factual account in issue by the denial set out in Answer ¶ 7.
As always, this opinion adheres to the conventional and convenient (though technically imprecise) practice of referring. to the underlying Bill of Rights provision (which of course imposes limitations only on the federal government) rather than to the Fourteenth Amendment (which applies to state actors and has been construed to embody such Bill of Rights guaranties).
But because both the Complaint and the Answer leave unclear the nature and scope of Jones' later involvement in the alleged Fourth Amendment seizure that was implicated in plaintiffs' arrest and transportation to a police station (Complaint and Answer ¶¶ 8 and 9), a qualified immunity defense might perhaps apply to that aspect of plaintiffs' claims. Accordingly A.D. 1 will not be stricken in its entirety, though it will be restricted to the extent reflected in this memorandum order.
As for ADs 2 through 4, none of them applies to plaintiffs' federal question claim. Instead each relates by its terms to plaintiffs' Illinois state law claims. But in that respect, the Amended Complaint seems to assert state law claims only as to City on respondeat superior theories (Complaint ¶ 11), and not to Jones and his fellow officers. Because that is unclear, however, this Court will await further input from plaintiffs' counsel before determining whether or not those ADs should be stricken as inapplicable to plaintiffs' claim against Jones.