Jaffee v. Redmond
| Citation | 51 F.3d 1346 |
| Decision Date | 12 May 1995 |
| Docket Number | No. 94-1151,94-1151 |
| Parties | 41 Fed. R. Evid. Serv. 612 Carrie JAFFEE, as Special Administrator for Ricky Allen, Sr. and Lechia Allen, Next Friend of Ricky Allen, Jr., and Brandon Allen, Plaintiffs-Appellees, v. Mary Lu REDMOND, Hoffman Estates Police Officer and Village of Hoffman Estates, Illinois, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Kenneth N. Flaxman, Ronald L. Futterman (argued), Futterman & Howard, Jennifer Kay Soule, Hartunian & Associates, Chicago, IL, for Carrie Jaffee and Lechia Allen.
Gregory E. Rogus (argued), Robert Wilens, Segal, McCambridge, Singer & Mahoney, Chicago, IL, for Mary Lu Redmond and Village of Hoffman Estates, Illinois.
Before WOOD, GODBOLD * and COFFEY, Circuit Judges.
On June 27, 1991, Police Officer Mary Lu Redmond responded to a reported fight in progress at an apartment complex. When she arrived at the scene, she was advised that there had been a stabbing inside the building. Within minutes thereafter, Officer Redmond stated that she fired her weapon and killed Ricky Allen, Sr. as he was pursuing and rapidly gaining on another man, and was poised to stab him with a butcher knife. Allen's surviving family members filed suit against Officer Redmond and her employer, the Village of Hoffman Estates, Illinois (the "Village"), alleging that Officer Redmond's use of deadly force violated Allen's rights under the Fourth and Fourteenth Amendments to the United States Constitution, and that Officer Redmond caused Allen's wrongful death under the Illinois Wrongful Death Act, 740 ILCS 180/0.01-2.2 (1994). Redmond and the Village appeal the $545,000 jury verdict. The appellants raise two issues on appeal: first, that the district court erred in instructing the jury on the use of deadly force; and second, that the district court erred by refusing to recognize a privilege for confidential communications between Officer Redmond and the licensed clinical social worker from whom she sought counseling. We affirm as to the first issue and reverse and remand as to the second issue dealing with the question of privilege.
On June 27, 1991, Officer Redmond, who was alone on patrol duty in that area on the day shift, responded to a dispatcher's report of a fight in progress at the Grand Canyon Estates apartment complex in the Village of Hoffman Estates, a suburb of Chicago, Illinois. Redmond was the first police officer to arrive at the scene. Officer Redmond testified that, as she pulled into the apartment complex parking lot, she saw two African-American women running toward her car, waving their arms above their heads, 1 one of whom stated that there had been a stabbing inside the building. Redmond relayed this information to her dispatcher and requested assistance and an ambulance.
As Redmond approached the apartment building, five men ran out the front door yelling and screaming. One of the men was waving a pipe above his head. At this time Officer Redmond testified that she ordered the man carrying the pipe to drop the pipe and also ordered everybody to the ground. After repeating the command "Drop the pipe" several times to no avail, Officer Redmond was forced to draw her service revolver. Almost immediately thereafter, two more men--a Caucasian man followed by an African-American man in hot pursuit--came running out of the door of the building. Officer Redmond testified that the African-American man, later identified as Ricky Allen, Sr., was armed with a butcher knife, was chasing and gaining on the Caucasian man, and was "directly behind" and poised to stab him when she fired the fatal shot. Officer Redmond testified that she commanded Allen to drop the butcher knife several times before firing:
I ordered the black male subject with the knife to drop the knife several times. I told him to drop the knife and get on the ground.... I was yelling at him to drop the knife and get on the ground.... [H]e did not drop the knife and he did not get on the ground.... [I yelled] at least three times. I just kept yelling the minute I saw him.
Officer Redmond explained the moment before the shooting as follows:
As [Allen] was gaining speed on the first subject until they were directly--he was directly in front of him, like the first subject's back, and then the second subject, as he was gaining on him the second subject, the male black subject with the knife took the knife back, raised it above his head and I waited, and as he started to come down with the knife and made the downward motion, I fired one shot at him.
Redmond testified that she "didn't even have time to square up," 2 when she fired her weapon "[b]ecause the second subject was about to kill the first subject with the knife." She noted that only three or four seconds elapsed from the time Allen emerged from the apartment building door until the time she fired. Four of Allen's brothers and sisters, all of whom witnessed the shooting, testified that Allen was unarmed when Officer Redmond fired her weapon.
Officer Redmond testified that after she fired the single shot at Ricky Allen, Sr., he fell to the ground and she ran toward him with her gun at her side. She observed the butcher knife lying on the grass approximately two or three feet from his body. She repeated her request for backup support and an ambulance on her portable radio, as "people came pouring out of the buildings." Redmond stated that several people within the crowd "started to charge" at her, as they were "yelling," "screaming," "swearing" and "quite hysterical." She raised her gun when one person from the crowd came within arm's length, and ordered everyone "to get back, get down, get beyond the sidewalk, get on the ground." In her testimony, Officer Redmond made it clear that no one from the crowd attempted to come to Allen's aid, and that the knife was not moved from the place it landed when Allen fell to the ground until it was retrieved by one of the investigating officers.
Allen's siblings remembered the events just after the shooting differently. Connie Allen, his sister, testified that she attempted to approach her brother's body when Officer Redmond, with her gun raised, ordered her to get back and also stated that Redmond ordered her sister Sharon to step back at gunpoint. Connie Allen did not observe a knife lying on the grass near her brother's body until after the ambulance had taken the body away. When asked at trial why she had not reported what she had seen to any of the police investigating the shooting, Connie stated that she had not felt like talking to anyone immediately after the shooting.
Officer Joe Graham arrived at the Grand Canyon Estates apartment complex shortly after the shooting. When he arrived, he saw a large crowd of people--approximately twenty-five to thirty African-Americans and five to ten Caucasians--gathered on the grass, and a number of people "rushing out of the apartment buildings--to see what was going on." Officer Graham observed Officer Redmond standing on the lawn, behind Allen's body, with her gun drawn and aimed at the crowd. Officer Graham testified during his deposition that Officer Redmond appeared "somewhat bewildered" when he first arrived at the scene, and later at trial he explained that he meant she was "visibly shaken or upset or disoriented." Officer Graham testified that the members of the crowd were "fluctuating back and forth ... in a very chaotic movement," yelling that Officer Redmond "had shot Mr. Allen and that she didn't have to shoot him in the head" and that "they were going to sue the white bitch for shooting Mr. Allen." Officer Graham testified that when he knelt down to check for Allen's pulse, he saw a butcher knife lying on the grass approximately an arm's length away from the body.
After the shooting, Officer Redmond sought counseling from Karen Beyer, a licensed clinical social worker 3 certified by the state of Illinois as an employee assistance counselor and employed by the Village. Officer Redmond met with Beyer for the first time three or four days after the shooting incident and continued counseling for approximately two or three sessions per week through at least January of 1992, six months after the shooting. 4
During pre-trial discovery, the plaintiffs learned that Officer Redmond had participated in a number of counseling sessions with Beyer, the licensed clinical social worker. At Officer Redmond's deposition, the plaintiffs inquired regarding the substance of her communications with Beyer. Officer Redmond refused to respond to this line of questioning, contending that her communications with a licensed clinical social worker were privileged. The plaintiffs subsequently subpoenaed Beyer to testify at a deposition and to produce her credentials as a counseling professional as well as all her "notes, records, [and] reports pertaining to Mary Lu Redmond." The defendants, Redmond and the Village, moved to quash the subpoena, maintaining that all of Officer Redmond's communications occurring within the context of the counseling relationship, as well as Karen Beyer's notes and reports pertaining to those communications, were privileged. The trial court denied the defendants' motion to quash, based on the judge's belief that the psychotherapist/patient privilege recognized in other circuits does not extend to a licensed clinical social worker, 5 and ordered Karen Beyer to testify as to "the disclosures made to her by Ms. Redmond of the incidents of the day that relate to [the shooting]." We wish to point out that the Illinois statute specifically grants the psychotherapist/patient privilege to social workers. See 740 ILCS 110/2, 110/10 (1994). The court ordered Officer Redmond to appear for a third deposition session to answer questions...
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