Doe, Jane v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2221
JANE DOE,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee,
and
CHARLES WHITE,
Defendant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 928—Joan Humphrey Lefkow, Judge.
____________
ARGUED DECEMBER 1, 2003—DECIDED FEBRUARY 27, 2004
____________
Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, who is not named
“Jane Doe,” brought suit against a Chicago police officer,
Charles White, charging him with both federal civil rights
violations (42 U.S.C. § 1983) and tortious misconduct under
Illinois law. She also named as a defendant the City of
Chicago, contending that it is liable for White’s misconduct
2 No. 03-2221
under the doctrine of respondeat superior, as codified in 745
ILCS 10/9-102; see Yang v. City of Chicago, 137 F.3d 522, 526-
27 (7th Cir. 1998); Kolar v. County of Sangamon, 756 F.2d 564,
566-67 (7th Cir. 1985). (Her complaint contained another
claim against the City, but she later abandoned it.) The City
moved for summary judgment with respect to the claim
against it, on the ground that White’s tortious behavior was
outside the scope of his employment. The district judge
granted the motion and entered a final judgment in favor of
the City under Fed. R. Civ. P. 54(b), which permits the judge
to “direct the entry of a final judgment as to one or more but
fewer than all of the claims or parties,” though “only upon
an express determination that there is no just reason for
delay.” The judge’s action enabled Doe to appeal immedi-
ately even though her claims against White have yet to be
resolved in the district court, where trial has been stayed to
await the outcome of the appeal.
As an aside, we express our concern about the plaintiff’s
litigating under a pseudonym. E.g., Coe v. County of Cook,
162 F.3d 491, 498 (7th Cir. 1998); Doe v. Blue Cross & Blue
Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997);
K.F.P. v. Dane County, 110 F.3d 516, 519 (7th Cir. 1997);
United States v. Microsoft Corp., 56 F.3d 1448, 1463-64 (D.C.
Cir. 1995) (per curiam). Judicial proceedings are supposed
to be open, as these cases make clear, in order to enable the
proceedings to be monitored by the public. The concealment
of a party’s name impedes public access to the facts of the
case, which include the parties’ identity. Not that conceal-
ment of a party’s name is always improper. The presump-
tion that parties’ identities are public information, and the
possible prejudice to the opposing party from concealment,
can be rebutted by showing that the harm to the plaintiff
(normally the plaintiff is the party whose identity is con-
cealed, except in cases in which the defendant’s identity is
unknown to the plaintiff when the suit is brought, as in
No. 03-2221 3
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971))
exceeds the likely harm from concealment. Does I Thru XXIII
v. Advanced Textile Corp., 214 F.3d 1058, 1068-69 (9th Cir.
2000); M.M. v. Zavaras, 139 F.3d 798, 802-03 (10th Cir. 1998);
James v. Jacobson, 6 F.3d 233, 238-43 (4th Cir. 1993); Doe v.
Frank, 951 F.2d 320 (11th Cir. 1992); Doe v. Stegall, 653 F.2d
180, 184-86 (11th Cir. 1981).
Although the plaintiff in this case is charging sexual
harassment, sexual harassment cases are not brought
anonymously even when the facts are gamier than they are
here. The plaintiff is not a minor, a rape or torture victim (cf.
Doe v. Wright, 82 F.3d 265, 267 (8th Cir. 1996), where the
plaintiff had been forced by the defendant police officer to
undress and perform “various sex acts in his presence”),
a closeted homosexual, or—so far as appears—a likely
target of retaliation by people who would learn her identity
only from a judicial opinion or other court filing. The quali-
fication in “so far as appears” is important, however. The
danger of retaliation is often a compelling ground for
allowing a party to litigate anonymously, e.g., Does I Thru
XXIII v. Advanced Textile Corp., supra, 214 F.3d at 1068-69;
United States v. Doe, 655 F.2d 920, 922 n. 1 (9th Cir. 1981);
Doe v. Stegall, supra, 653 F.2d at 186; Gomez v. Buckeye Sugars,
60 F.R.D. 106 (N.D. Ohio 1973), and could be a factor in a
case such as this in which the plaintiff is charging a police
officer with sexual misconduct that he denies. But there is
no indication that this is the basis on which the plaintiff is
seeking to litigate anonymously. Indeed, there is no indica-
tion of any basis for her proceeding thus. She merely filed
the complaint anonymously, there was no objection, and the
judge conducted no inquiry into the propriety of anonymity.
The judge’s failure to make an independent determination
of the appropriateness of the plaintiff’s concealing her name
was error because, as we have explained, “the use of
fictitious names is disfavored, and the judge has an inde-
4 No. 03-2221
pendent duty to determine whether exceptional circum-
stances justify such a departure from the normal method of
proceeding in federal courts.” Doe v. Blue Cross & Blue Shield
United of Wisconsin, supra, 112 F.3d at 872.
Given the procedural posture, we construe the facts as
favorably to Doe as the case permits. She was in an auto
accident and sought the help of a police officer, who hap-
pened to be the defendant Charles White. He was attracted
to her, and asked her to have a drink with him, but she re-
fused. He started calling her at her home at night, pestering
her for a date. She refused steadily, and wouldn’t give him
her address. But one day while he was on duty and in his
police car, he saw her driving and ordered her to pull over.
He told her she’d done nothing wrong and he wasn’t going
to give her a ticket, but he nevertheless insisted on examin-
ing her driver’s license—so he could learn her address. One
morning a couple of weeks later he broke into her house
while she was sleeping. She woke up and encountered him
in the kitchen. He grabbed her, rubbed against her, and
even exposed his penis to her. She ordered him to leave the
house, threatening to call 911 if he didn’t leave. He replied
that he “is 911,” and reminded her that he worked in her
district. After another break-in by White and more harass-
ing phone calls, Doe complained to the police department’s
Office of Professional Standards. Following a hearing at
which White denied Doe’s charges, claiming that the two
had had a voluntary relationship that had gone bad, the
police review board found him guilty of telephone harass-
ment and trespass and ordered him suspended for ten
months.
It is doubtful that if Doe obtains a substantial money
judgment against White he will have the wherewithal to pay
it. But if in harassing Doe he was acting within the scope of
his employment by the City as a police officer, then under
state law, as we noted at the outset, the City must pay the
No. 03-2221 5
judgment. The general rule, on which the district judge
relied in granting the City’s motion for summary judgment,
is that an employer is liable for an intentional tort commit-
ted by its employee only if the tort was in furtherance of his
employment, that is, only if the employee’s motive, or at
least a motive, in committing the tort was to serve his
employer. E.g., Wright v. City of Danville, 675 N.E.2d 110,
117-18 (Ill. 1996); Rice v. Nova Biomedical Corp., 38 F.3d 909,
912-13 (7th Cir. 1994) (Illinois law); Illinois Founders Ins. Co.
v. Smith, 596 N.E.2d 59, 64 (Ill. App. 1992); Gregor v. Kleiser,
443 N.E.2d 1162, 1166 (Ill. App. 1982); Sunseri v. Puccia, 422
N.E.2d 925, 930 (Ill. App. 1981); W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts 505 (5th ed. 1984). Only
Wright involves the indemnity statute, 745 ILCS 10/9-102,
but the other cases we have cited (and many others we
could cite), plus the Restatement (Second) of Agency § 228(2)
(1958), also hold that unless in furtherance of the business
of the tortfeasor’s employer, an intentional tort is not within
the scope of his employment; and that would bring it
outside the indemnity statute as well.
So if White had pulled over Doe both to ticket her for a
traffic violation and to get her address for entirely personal
reasons, that part at least of the harassment of which she
complains (the smallest part) would be within the scope
of his employment. But Doe insists that even if White’s
motives were entirely personal throughout, his torts were
within the scope of his employment because he is a police
officer who used (that is, misused) his authority to effectu-
ate his personal design.
The proposition that scope of employment should be
interpreted more broadly when the employee is a police of-
ficer has yet to be considered by the Supreme Court of
Illinois, but it has a footing in other jurisdictions and may
well be the wave of the future. Mary M. v. City of Los An-
6 No. 03-2221
geles, 814 P.2d 1341, 1347-52 (Cal. 1991); West v. Waymire, 114
F.3d 646, 649 (7th Cir. 1997); St. John v. United States, 240
F.3d 671, 676-78 (8th Cir. 2001); Primeaux v. United States, 102
F.3d 1458 (8th Cir. 1996); Red Elk v. United States, 62 F.3d
1102, 1104-07 (8th Cir. 1995); Ingram v. City of Indianapolis,
759 N.E.2d 1144, 1146-48 (Ind. App. 2001); Applewhite v. City
of Baton Rouge, 380 So. 2d 119, 121-22 (La. App. 1979); Carney
v. White, 843 F. Supp. 462, 479-80 (E.D. Wis. 1994), affirmed
under the name Carney v. Village of Darien, 60 F.3d 1273 (7th
Cir. 1995); cf. Stropes v. Heritage House Childrens Center of
Shelbyville, Inc., 547 N.E.2d 244, 245, 249-50 (Ind. 1989);
Gutierrez v. Thorne, 537 A.2d 527 (Conn. App. 1988); see
generally 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law:
Liability & Litigation § 7:12 (rev. ed. 1994 & Supp. 2001);
Rochelle Rubin Weber, Note, “ ‘Scope of Employment’
Redefined: Holding Employers Vicariously Liable for Sexual
Assaults Committed by Their Employees,” 76 Minn. L. Rev.
1513 (1992). It is not that being a police officer creates access
that facilitates the commission of intentional torts. That is
true of many employments. A meter reader gains access to
homes by virtue of his employment by the electric company,
but if he steals something from the home the theft is not
deemed to be within the scope of his employment. See
Hendley v. Springhill Memorial Hospital, 575 So. 2d 547 (Ala.
1990); Grimes v. B.F. Saul Co., 47 F.2d 409 (D.C. Cir. 1931).
The difference between him and other intentional tortfea-
sors is slight. The situation of a police officer, however, is
significantly different from that of a meter reader. The
officer is armed, has authority to arrest that is considerably
broader than the authority of a private person to make a
“citizen’s arrest,” has access to all sorts of personal informa-
tion, is an authority figure trained to develop and project an
intimidating aura, and may seem to be above the law (“I am
911”).
No. 03-2221 7
Indispensable to law and order, he is also and inescapably
a dangerous instrumentality. A person who keeps a tiger in
his backyard is strictly liable for the injuries caused by it,
G.J. Leasing Co. v. Union Elec. Co., 54 F.3d 379, 386 (7th Cir.
1995), and when an independent contractor is hired to
conduct an abnormally dangerous activity the principal is
strictly liable for injuries caused by the activity. Anderson
v. Marathon Petroleum Co., 801 F.2d 936, 938-39 (7th Cir.
1986); Crane v. Conoco, Inc., 41 F.3d 547, 549-50 (9th Cir.
1994); Restatement (Second) of Torts § 427A (1965). Maybe by
analogy a police department should be held strictly liable
for torts of police officers who use their official powers to
commit the torts. As in the ultrahazardous-activity cases,
the power of a rogue police officer to do harm is so great
that more than ordinary care on the part of his employer
may be required in order to provide adequate protection to
the public.
We cannot be certain whether the Supreme Court of
Illinois would accept the analogy and hold that White, if the
facts are as contended by Doe, was acting within the scope
of his employment in committing the acts of which she
complains. But it might; and at argument the City’s lawyer
joined Doe’s lawyer in urging us to certify the question to
the Supreme Court of Illinois. Had the City opposed
certification, we would be inclined to deny certification
outright. A litigant who wants an adventurous interpreta-
tion of state law should sue in state court (if she can do
so—but Doe could have done so because state courts have
jurisdiction concurrent with the federal courts to enforce 42
U.S.C. § 1983) rather than ask us to declare such an interpre-
tation to be the law of Illinois. Chang v. Michiana Telecasting
Corp., 900 F.2d 1085, 1087-88 (7th Cir. 1990); Afram Export
Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th
Cir. 1985); Veilleux v. National Broadcasting Co., 206 F.3d 92,
131 (1st Cir. 2000); Witzman v. Gross, 148 F.3d 988, 991 (8th
8 No. 03-2221
Cir. 1998); In re C-T of Virginia, Inc., 958 F.2d 606, 611-12 (4th
Cir. 1992); Hinojosa v. City of Terrell, 834 F.2d 1223, 1231-32
and n. 12 (5th Cir. 1988). And it’s not a proper alternative to
proceeding in the first instance in state court to sue in
federal court but ask that the suit be stayed to permit
certifying the interpretive issue to the state court, thus
asking that the suit be split between two courts.
Certification to the Illinois supreme court is in any event
premature because the facts bearing on the scope of em-
ployment issue have not yet been determined. White denied
Doe’s charges at the hearing before the police review board,
and the board did not find him guilty of the most serious of
her charges. The jury in White’s trial in the district court
may disbelieve Doe’s evidence and reject her entire case, in
which event the issue of the City’s vicarious liability will be
moot. Or the trial may cast the facts in a different light from
the version that the procedural posture of this appeal
requires us to accept without our knowing whether it is the
correct version. Whether the scope of a police officer’s
employment should be deemed broader than that of other
employees is a difficult and important question that we
should not ask the state supreme court to answer on make-
believe facts. Cf. Eley v. Pizza Hut of America, Inc., 500
N.W.2d 61 (Ia. 1993); Western Helicopter Services, Inc. v.
Rogerson Aircraft Corp., 811 P.2d 627, 630 (Ore. 1991); Catlin
v. Ambach, 820 F.2d 588, 591 and n. 2 (2d Cir. 1987);
Santasucci v. Gallen, 607 F.2d 527, 529 (1st Cir. 1979); 17A
Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice & Procedure § 4248, p. 174 (2d ed.
1988). We recall how an entire branch of the tort law of
privacy was created by a case in which critical facts, though
possibly fictitious, were taken as true because the defendant
had demurred rather than contested them. The case is
Melvin v. Reid, 297 Pac. 91 (Cal. App. 1931), which created a
right (now defunct, Willan v. Columbia County, 280 F.3d 1160,
No. 03-2221 9
1162-63 (7th Cir. 2002)) to prevent the publicizing of one’s
criminal history on the basis of uncontradicted allegations
that Mrs. Melvin, a former prostitute who had been prose-
cuted for murder but acquitted and after her acquittal had
married and changed her name, had lived a blameless life
in a community in which her past was unknown until the
defendant made a movie about the murder case, using her
maiden name.
It does not follow from our declining either to certify the
question of the City’s liability or to venture onto terrain that
the Supreme Court of Illinois has yet to set foot on that we
must affirm the judgment in the City’s favor. The district
judge jumped the gun when she entered a final, appealable
judgment on Doe’s claim against the City. We have warned
repeatedly against trying to resolve indemnity before
liability. Lear Corp. v. Johnson Electric Holdings Ltd., 353 F.3d
580, 583 (7th Cir. 2003); Nationwide Ins. v. Zavalis, 52 F.3d
689, 693 (7th Cir. 1995); Grinnell Mutual Reinsurance Co. v.
Reinke, 43 F.3d 1152, 1154 (7th Cir. 1995); Travelers Ins. Cos.
v. Penda Corp., 974 F.2d 823, 833-34 (7th Cir. 1992). This case
illustrates the inadvisability of the practice. The issue of the
City’s responsibility for the torts of its police officers is a
difficult one that the district judge should not have at-
tempted to resolve before the actual facts bearing on the
issue were determined. The ruling was premature and so
therefore was the entry of final judgment under Rule 54(b),
which made the ruling immediately appealable.
The judge had the power to enter such a judgment; when-
ever there are multiple parties, an order that finally resolves
a party’s liability is eligible to be made final, and therefore
appealable, under Rule 54(b), though the case continues in
the district court between the other parties. She had the
power, but not the duty. Fed. R. Civ. P. 54(b); Continental
Casualty Co. v. Anderson Excavating & Wrecking Co., 189 F.3d
512, 518-19 (7th Cir. 1999); Horn v. Transcon Lines, Inc., 898
10 No. 03-2221
F.2d 589, 591 (7th Cir. 1990); Advanced Magnetics, Inc. v.
Bayfront Partners, Inc., 106 F.3d 11, 16 (2d Cir. 1997). As there
was “just reason for delay” until the claims against White
were resolved—namely the need to develop a factual basis
for determining how broad the City’s vicarious liability for
the torts of its police officers should be, a basis which might
show that her ruling on the City’s responsibility for White’s
conduct was erroneous— the judge should have deferred
entering judgment. Her refusal to wait was based on Doe’s
unwillingness to settle until the City’s liability was deter-
mined. Under Illinois law, a settlement with the agent
extinguishes the principal’s liability, Gilbert v. Sycamore
Municipal Hospital, 622 N.E.2d 788, 796-97 (Ill. 1993); other-
wise the agent would gain nothing from the settlement,
since if the plaintiff proceeded against the principal and
obtained a judgment, the principal could turn around and
seek indemnity from the agent. Id. at 797. But the deadlock
over settlement was not a good reason for the judge to jump
the gun and decide indemnity before liability and then
allow a premature appeal. That decision, and therefore the
Rule 54(b) judgment, must be vacated. Horn v. Transcon
Lines, Inc., supra, 898 F.2d at 593-95; Advanced Magnetics, Inc.
v. Bayfront Partners, Inc., supra, 106 F.3d at 21-22; Spiegel v.
Trustees of Tufts College, 843 F.2d 38, 44-46 (1st Cir. 1988).
One loose end remains to be tied up. Doe claims that
when she was pulled over by White she had not committed
a traffic offense, and she has used this claim to bolster her
contention that White was harassing her. Before the police
review board, and doubtless to be renewed at his trial in the
district court, White claimed that she had committed a traffic
offense; and in a rather desperate effort to bring White’s
conduct within the traditional scope of a police officer’s
employment, Doe now asks us to accept White’s version
and treat the traffic stop as a dual-motive act, an act that
involved stopping a violator of the traffic laws because it
was his duty, as well as to get the violator’s address for a
No. 03-2221 11
purely personal reason, and therefore an act that cast
liability on the City under standard principles of respondeat
superior.
It is late in the day for Doe to be trying to change her
version of the facts, and in any event might not do her any
good. She isn’t seeking damages for the petty inconvenience
of being stopped for a few minutes and then let go without
a citation—those damages would be utterly negligible—but
for the telephone harassment, the repeated breaking and
entry, and the physical assault. The only connection be-
tween the traffic stop and the injurious acts is that the stop
was the method by which White got her address, that is, got
access; and as we noted with reference to the meter reader,
the fact that one’s employment gains one access to a per-
son’s home does not make the employer liable for a purely
personal act within the home. For that act is not in further-
ance of the employer’s business, though the gaining of
access may have been. At least that is the general rule; the
scope of employment of a police officer may be broader
than that of a meter reader, but that is the issue that must
abide a decision by the Supreme Court of Illinois. We
intimate no view on what that decision should be.
The judgment of the district court is vacated for the rea-
sons explained in this opinion and the matter remanded.
VACATED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-27-04