Loralee Vasquez and Charles Vasquez v. Lt. Charles Hernandez, Officers Robert Kierney, Jackie L. Dukes

60 F.3d 325

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 12, 1995
• Docket: 94-2447
• Status: Published

Opinions

BAUER, Circuit Judge.

Loralee and Charles Vasquez brought this action under 42 U.S.C. §§ 1983,1985, against several members of the Cicero Police Department and one member of the Cicero Fire Department. The district court dismissed the section 1985 claim on the pleadings and then granted the defendants’ motion for summary judgment on the section 1983 claim. At the heart of the district court’s summary judgment decision was its finding that the Vasquezes suffered no constitutional injury. The Vasquezes challenge that finding and appeal the court’s decision.

January 27, 1991, known unofficially as Super Bowl Sunday, was a bad day for Lora-lee Vasquez. While in her home in Cicero, Illinois, she was struck in the ear by a stray bullet. Officer William Pfieffer of the Cicero Police Department was the first police officer to respond to the Vasquezes’ call for help. Upon arriving at the Vasqtiez residence, he inspected the room where the shooting occurred and retrieved a bullet slug from under a table. Pfieffer then called his fellow officers for backup.

Among the next wave of officers to arrive at the scene was Sergeant Erjavec. He and Pfieffer proceeded to examine the exterior of the Vasquez home around the window through which the bullet had entered. They discovered one bullet hole in the side of the Vasquezes’ garage and two more in the garage door. At that time, Pfieffer was approached by Charles Hernandez, an off-duty Cicero police officer and a neighbor of the Vasquezes. When told about the shooting, Hernandez suggested that the bullets may have been intended for him because he had been having trouble with some gang members.

After completing his search of the premises, which revealed a second gun shell in the Vasquezes’ garage, Pfieffer talked to some of the neighbors. Those who were at home admitted to hearing the shots but had seen nothing that might lead police to the identity of the shooter. Pfieffer concluded that the explanation proffered by Sergeant Hernandez was the most likely. Pfieffer returned to the police station where he met with Detectives Howard Hatton and Anthony Iniquez. After briefing the detectives on the shooting, Pfieffer turned over the bullets to them.

Later that evening, Hatton and Iniquez followed up on Pfieffer’s preliminary investigation. They interviewed the Vasquezes and inspected the vicinity of the shooting. Then they proceeded to Hernandez’s house where they asked him questions about the shooting. Iniquez believed Hernandez to be inebriated. Upon returning from their inquiry, Hatton and Iniquez completed their reports on the shooting. They placed the two shells in an evidence envelope and stored the envelope in Iniquez’s desk drawer. Though the case remained officially “open,” there was little activity or investigation of the matter by the Cicero police for over four months.

In the interim, the FBI, the Illinois State Police, and the Cook County State’s Attorney’s Office collaborated to establish a Task Force for purposes of investigating the Vasquez shooting. Their lengthy and detailed inquiry consisted of numerous interviews, exhaustive examination of physical evidence, and use of a sophisticated laser trajectory system designed to replicate the shooting and to locate its source.

The Task Force reached the following conclusion: In the midst of hosting a Super Bowl party at his house, Hernandez and two other off-duty police officers, Joseph Sirge-das and Daniel Dimenna, went out to Hernandez’s backyard. In the backyard, a piece of tarp was draped over the door of a children’s playhouse. A shooting target was affixed to the tarp with a picture of Saddam Hussein tacked to the center of the target. Witnesses observed Hernandez and two or three other men in the yard. Two of the men were in a combat shooting stance with their arms pointed towards the target. Guests at the party acknowledged hearing gunshots during halftime of the Super Bowl. Ballistics tests of the shells found in the Vasquezes’ home confirmed that they could have been fired by either Sirgedas’s or DiMenna’s nine millimeter gun.

Based on the Task Force’s findings, Hernandez, Sirgedas, and DiMenna were charged with violating provisions of the Cicero Code of Ordinances and General Orders. The relevant provisions govern the use and carry of firearms by off-duty police officers. Detective Iniquez was also charged with violating the Cicero Code for his failure to submit the bullets to the property clerk in accordance with prescribed procedure. Hernandez, Sirgedas, and DiMenna were suspended for thirty days. Iniquez received a five-day suspension.

Upon the conclusion of the Task Force’s investigation, the Vasquezes filed this action. The complaint alleged wrongdoing on the part of two sets of defendants. The first group of defendants is comprised of the various off-duty police officers present at Hernandez’s home on the day of the shooting who were either aware of or took part in the backyard shooting.¹ The second group of defendants consists of the on-duty police officers who were involved in the investigation of the shooting and who, according to the complaint, conspired with the first group of defendants to cover up the shooting and impede the investigation.² The district court granted all the defendants’ motions for summary judgment.³ We affirm.

To successfully withstand a defendant’s motion for summary judgment, a plaintiff suing under 42 U.S.C. § 1983 must demonstrate that with respect to the essential elements of the action, there is a genuine dispute as to a material and outcome-determinative fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In deciding on appeal whether a grant of summary judgment was appropriate, we review the evidence and draw reasonable inferences in a light most favorable to the nonmoving party, in this ease, the Vasquezes. Cuddington v. Northern Indiana Public Serv. Co., 33 F.3d 813 (7th Cir.1994).

Relief under section 1983 is available to a plaintiff who can demonstrate that a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured either by the Constitution or by federal law. The first step in analyzing a section 1983 claim is to identify the specific constitutional injury. Kernats v. O’Sullivan, 35 F.3d 1171, 1175 (7th Cir.1994). The Vasquezes claim that the defendants’ conspiracy of silence deprived them of their constitutional right to seek judicial relief for their injury.

The right of individuals to pursue legal redress for claims which have a reasonable basis in law and fact is protected by the First and Fourteenth Amendments. Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 2169, 76 L.Ed.2d 277 (1983); Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir.1984). A corollary of this right is that efforts by state actors to impede an individual’s access to courts or administrative agencies may provide the basis for a constitutional claim under 42 U.S.C. § 1983. Judicial access must be “adequate, effective, and meaningful,” Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977), and therefore, when police officers conceal or obscure important facts about a crime from its victims rendering hollow the right to seek redress, constitutional rights are undoubtedly abridged. Bell, 746 F.2d at 1261; see also Stone v. City of Chicago, 738 F.2d 896 (7th Cir.1984); Ryland v. Shapiro, 708 F.2d 967 (5th Cir.1983).

Bell provides a stark example of how police conduct can infringe upon the right of access. In that case, Daniel Bell, a black man, was shot and killed by a Milwaukee police officer named Thomas Grady. Bell, 746 F.2d at 1215. After the shooting, Grady planted a knife in Bell’s hand. Grady and his partner, Louis Krause (who had witnessed the incident), then falsely claimed that Grady had shot Bell in self-defense after Bell had threatened Grady with the knife. Id. Bell’s father filed a wrongful death action against the officers. The officers continued to assert that the shooting was in self-defense. The case first resulted in a mistrial and then, at the urging of the judge, was settled for an amount so meager, Bell’s father never cashed the City’s check. Id. at 1223.

The true circumstances surrounding Bell’s death were not revealed until twenty years later when Krause admitted that he and Grady had covered up the truth about Bell’s death. Bell’s survivors filed a lawsuit which alleged that members of the Milwaukee police force conspired to conceal the true facts of the shooting and that this conspiracy deprived the plaintiffs of their due process rights. Evidence presented at trial indicated that the cover-up was partly a product of racial discrimination amongst the police force. The jury delivered a verdict in the plaintiffs favor. On appeal, we were presented with an argument maintaining that the plaintiffs’ right of access to the courts was not a federally protected right. Id. at 1260. Defending the jury’s verdict, we held that the obstruction of legitimate efforts to vindicate a killing interfered with the due process right of access. Id. at 1261. Our holding was motivated in particular by the egregiousness of the police conduct in that ease and the prejudice resulting from the excessive delay. Id. at 1264.

Try as they might, the Vasquezes cannot successfully analogize their predicament to that of the plaintiffs in Bell. Though the actions of the defendants in this ease are inexcusable, the magnitude of the injury suffered by the Vasquezes is not nearly that sustained by Bell’s family. Unlike the twenty-year delay in Bell, the actual circumstances surrounding the shooting here were revealed publicly within six months of the incident. And subsequent to the Task Force’s investigation, the Vasquezes were granted access to the records of that investigation for use in their own legal action. Hence, the delay, albeit frustrating for the Vasquezes, has not been without some benefit for them. Armed with the information unearthed by the Task Force, they are at a significant advantage in a state tort action against the defendants. The same could not be said in Bell where the prejudice to the plaintiffs was extraordinary and extreme.

The Vasquezes contend that this reasoning “suggests the analogy of someone being ‘a little bit pregnant.’ ” Specifically, they maintain that the difference in the delay does not adequately distinguish Bell because an act must be either wrongful or not wrongful at the time it was done. In their words, “The passage of time does not alter the character of those acts.”

We reiterate that by our holding, we do not mean to defend the defendants’ actions. The deplorable nature of their conduct is without question. Nevertheless, though the Vasquezes are correct in their assertion that the wrongfulness of an act is judged at the time it is done, the constitutionality of that act may indeed depend on other contextual factors including the passage of time. “Not every act of deception in connection with a judicial proceeding gives rise [to a constitutional action].” Id. at 1265. The Vasquezes’ constitutional rights were ultimately preserved in this case. The cornerstone of our decision in Bell was that the conspiracy had prevented a full and open disclosure of facts crucial to the cause of action, rendering hollow the plaintiffs’ right of access. In this case, the cover-up failed to achieve such ends. There are no allegations claiming that the Vasquezes have been prevented from pursuing a tort action in state court or that the value of such an action has been reduced by the cover-up. We agree, therefore, with the district court in holding that the delay caused by the defendants’ alleged conspiracy failed to deprive the Vas-quezes of their right to access.

Having determined that the Vasquezes failed to sufficiently demonstrate a constitutional injury, we need not address alternative arguments which the defendants offer in defense of the decision below. The district court’s holding is, therefore,

AFFIRMED.

1 . This group consists of Charles Hernandez, Robert Kiemey, Jackie Lee Dukes, Daniel DiMenna, Joseph Sirgedas, and George Janecek.

2 . Comprising the second group of defendants are William Pfleffer, Stephen Gratace, Jerry Eijavec, Anthony Iniquez, Howard Hatton, and Bruno Jankauskas.

3 . Because the district court's order failed to grant summary judgment in favor of the defendant Jackie Lee Dukes, we requested that the parties address the issue of whether we had jurisdiction over this appeal. In the interim, the district court issued a nunc pro tunc order clarifying its earlier order and granting summary judgment in Dukes's favor. A district court may issue an order of clarification nunc pro tunc after a notice of appeal has been filed without robbing this court of its jurisdiction. Local 1545, United Mine Workers of America v. Inland Steel Coal Co., 876 F.2d 1288, 1291-92 n. 4 (7th Cir.1989). Jurisdiction is, therefore, intact. Nevertheless, the Vasquezes have moved to dismiss Dukes from this appeal, and since there is no objection to such a dismissal, the motion is granted.