Stengel v. Belcher, 75-1075

• Citation: 522 F.2d 438
• Decision Date: 16 September 1975
• Docket Number: No. 75-1075,75-1075
• Parties: Casey D. STENGEL et al., Plaintiffs-Appellees, v. Raymond L. BELCHER, Individually and as a Police Officer of the PoliceDepartment of the City of Columbus, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 438

522 F.2d 438

Casey D. STENGEL et al., Plaintiffs-Appellees, v. Raymond L. BELCHER, Individually and as a Police Officer of the PoliceDepartment of the City of Columbus Defendant-Appellant.

No. 75-1075.

United States Court of Appeals Sixth Circuit.

Argued April 21, 1975.

Decided Sept. 16, 1975.

Dale A. Crawford, Robert Bell, James J. Hughes, Jr., Columbus, Ohio, for defendant-appellant.

Charles E. Taylor, Clayman, Jaffy & Taylor, John H. Lewis, Columbus, Ohio, for plaintiffs-appellees.

Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.

WEICK, Circuit Judge.

The suit in the court below arose out of an incident in Jimmy's Cafe in Columbus, Ohio at about 1:30 A.M., on March 1, 1971 in which Raymond L. Belcher, an off-duty policeman, shot and killed two young men and paralyzed a third while acting under color of law.

The suit was brought under authority of 42 U.S.C. §§ 1983 and 1985 for violation of the civil rights of the plaintiffs to due process and equal protection of the laws. Cf. Smartt v. Lusk, 373 F.Supp. 102 (E.D.Tenn.1973), Aff'd, 492 F.2d 1244 (6th Cir. 1974).

The plaintiffs in the case were Casey D. Stengel, a 22 year old man who was shot in the back, the bullet penetrating his spine and paralyzing him, and the administrators of the estates of the other two deceased men. The defendants were Officer Raymond L. Belcher, the City of Columbus, and a number of other police officers who were alleged to have conspired to cover up the facts concerning the shootings.

The District Court granted the motion to dismiss of the City of Columbus. The case was tried to a jury. At the close of the plaintiffs' case in chief the District Court granted the motions of the defendants, the police officers, other than Belcher, for a directed verdict and dismissed them from the case. The case then proceeded against the remaining defendant, Raymond L. Belcher, resulting in verdicts against him in favor of all of the plaintiffs.

The jury awarded Noe's estate $9,000 in compensatory damages and $1,000 in punitive damages, Ruff's estate.$19,000 in compensatory damages and $1,000 in punitive damages, and Stengel $800,000 in compensatory damages and $1,000 in punitive damages. Belcher has appealed. We affirm.

Briefly, the evidence disclosed that at approximately 1:00 A.M., on March 1, 1971, Stengel, Ruff and Noe entered Jimmy's Cafe. Stengel, Ruff and Noe were in their early twenties. They recognized one of the other customers, Mrs. Agnes Morgan. She introduced them to her husband, Kyle, and Stengel and Noe decided to play a game of "bowling" with Mr. and Mrs. Morgan for a beer. After the game, Stengel took a seat at the bar. A dispute developed between Noe and the Morgans. Mrs. Morgan slapped Noe in the face and Noe slapped her back. The dispute escalated and the evidence as to what happened is sharply in conflict but it is undisputed that none of the young men were armed.

Belcher, who, as before noted, was off duty and out of uniform, had previously entered the bar with his girlfriend and they had seated themselves with another couple in one of the booths. Belcher was equipped with a can of mace and a 32 caliber revolver which police regulations required him to carry at all times. Without identifying himself as a police officer at any time, Belcher involved himself in the altercation. Belcher claimed that he was attacked by Stengel, Ruff and Noe. His girlfriend and the other couple in the booth corroborated his story. Stengel testified that Belcher was holding Ruff from behind, at which point Stengel grabbed Belcher and pushed him down to the floor. On the way down, Belcher was spraying Stengel in the face with the mace.

Belcher and other witnesses testified that Stengel, Ruff and Noe was "stomping" him. Stengel testified that he only kicked at the chemical mace in Belcher's hand when Belcher was on the floor and that Ruff and Noe were not doing anything to Belcher. Belcher drew his gun and shot Ruff in the chest, the bullet passing through his heart, and he shot Stengel in the back. The bullet entered Stengel's spinal canal and he was immediately paralyzed. There is some dispute whether Noe was shot inside or outside the bar. He was found on the sidewalk outside the cafe where Belcher had chased him. He was shot in the chest. Belcher testified that he grappled with Noe outside of the bar and struck him in the face with his gun and it went off.

A police laboratory report disclosed that Stengel was shot from a distance of 6 to 10 inches, Ruff from a distance of 12 to 20 inches and Noe from a distance of 6 inches.

Belcher testified that in the cafe he fired his pistol three times in the air.

Belcher contends that there is insufficient evidence to support the jury's finding, implicit in its verdict, that Belcher was acting under color of state law at the time of the incident in Jimmy's Cafe. He contends that the evidence shows that he was engaged in private social activity, was out of uniform and off duty and never identified himself as a police officer. In other words, he contends that his actions were taken as a private citizen. Acts of police officers in the ambit of their personal, private pursuits fall outside of 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 185, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

However, "(a)cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." Screws, supra, at 111, 63 S.Ct. at 1040. The fact that a police officer is on or off duty, or in or out of uniform is not controlling. "It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law." Johnson v. Hackett, 284 F.Supp. 933, 937 (E.D.Pa.1968). See Robinson v. Davis, 447 F.2d 753 (4th Cir. 1971), Cert. denied, 405 U.S. 979, 92 S.Ct. 1204, 31 L.Ed.2d 254 (1972).

The chemical mace which Belcher sprayed was issued to him by the Columbus police department. Belcher carried his pistol pursuant to a regulation of the police department which required off-duty officers to carry pistols as well as mace at all times.

Although Belcher testified that he was attacked while trying to go outside of the bar to the telephone police, ¹ Stengel testified that Belcher grabbed Robert Ruff from behind, around the neck and waist, after the dispute between Ruff, Noe and the Morgans had begun. There was other evidence which permitted an inference that Belcher, although he overstepped the bounds, intervened in the dispute pursuant to a duty imposed by police department regulations.

Dwight Joseph, who was the chief of police at the time of the incident, testified that a police officer was required to take action "in any type of police or criminal activity 24 hours a day." Chief Joseph further testified:

A. They would be subject to discipline if they didn't take action.

Q. Did Raymond Belcher act under the authority of those regulations in the incident that's here involved?

A. Yes, sir.

The record contains a letter dated April 8, 1971 written to Officer Belcher by the Director of the Department of Public Safety, Mr. James J. Hughes, ² which closed the inquiry of the Police Firearms Board of Inquiry by exonerating Belcher. In relevant part, the letter states: "The inquiry is hereby closed with a specific finding that your actions were in line of duty . . .." Officer Belcher also received workmen's compensation on the ground that he was "in line of duty under circumstances relating to police duties."

The plaintiffs-appellees contend that the District Court should have decided, as a matter of law, that Officer Belcher was acting at the time under color of state law, in view of an admission by his counsel in open court to that effect and the undisputed testimony. We agree. Out of an abundance of caution the District Court submitted this factual issue to the jury for its determination. We see no objection to this procedure and hold that the evidence abundantly supports the jury's verdict.

It is not understandable to us why Officer Belcher, instead of entering into the affray, grabbing one of the participants from behind and spraying mace did not announce to the participants that he was a police officer and demand that they desist in their altercation. This might have prevented injury to anyone. It appears to us that Belcher, as a police officer, used poor judgment.

Belcher's next contention is that the District Court erred in excluding evidence proffered of allegedly similar incidents involving Ruff, Noe and Stengel. Among other purposes, he claims that the evidence was admissible on the issue of who was the aggressor in the incident involved in the case at bar. ³ Incidentally, the Court also excluded evidence of similar incidents proffered by plaintiffs involving Belcher.

Belcher sought to introduce testimony by several people concerning four previous incidents in which Ruff, Noe and Stengel allegedly entered bars and caused trouble. One of the incidents allegedly happened earlier on the night of February 28, 1971, the night on which the three men were shot.

The proffer indicated that most of the witnesses would testify that in the other bars the trio was loud, abusive, profane, and that they attempted to cause trouble.

In addition, assuming that Belcher was acting under color of state law, the primary issue was whether Officer Belcher used excessive force, and not who was the first aggressor.

The appellees indicated that the proffered testimony would have been controverted, thus, introducing disputes over collateral issues, with the attendant possibility of confusion of issues and the certainty that the trial would be prolonged. The proffered evidence in no event would have been admissible on the issue of self defense because there is no...