Webster v. City of Houston, 81-2007
Citation | 689 F.2d 1220 |
Decision Date | 28 October 1982 |
Docket Number | No. 81-2007,81-2007 |
Parties | John Russell WEBSTER, et al., Plaintiffs-Appellees Cross-Appellants, v. The CITY OF HOUSTON, Defendant-Appellant Cross-Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
James K. Gardner, Timothy James, Houston, Tex., for defendant-appellant cross-appellee.
Harvill & Hardy, G. P. Hardy, III, Alison Pettiette, Houston, Tex., K. Michael Mayes, Conroe, Tex., for plaintiffs-appellees cross-appellants.
Appeals from the United States District Court for the Southern District of Texas.
Before BROWN, GOLDBERG and TATE, Circuit Judges.
Television police dramas paint a frightening and often bloody picture of life. The suffering of innocent victims and their families nightly invades our living rooms, subject only to the viewer's freedom to change the channel. In this case we lack that freedom, for this episode involves a true story. The names have not been changed; and in the final scene, the innocent, far from being protected, lay on a city street, dying, while Houston police officers debated whether to cover up their misdeeds by placing a "throw down" gun at the victim's side. We find that the evidence supports the jury's verdict in favor of the victim's parents in this § 1983 claim against the City of Houston but, since the jury misunderstood its instructions, we remand for a new trial as to damages alone.
Randy Webster, a 17-year old native of Shreveport, Louisiana, stole a van from a Dodge dealership on the Gulf Freeway in Houston, Texas. Houston police officer Danny Mays spotted the van and gave chase. Officers Holloway and Olin, responding to his radioed calls, joined in. A Houston taxi driver, trying to do his part, tried to force the van off the road. Eventually, near the intersection of Telephone Road and Hall Road in southeast Houston, Randy lost control of his vehicle. It spun out of control and came to rest facing the direction he had come. The police cars screeched to a halt nearby. Mays, Holloway and Olin ran up to the van and ordered Randy out.
At this point, the testimony diverges. According to the initial police report, Randy got out of the car with something in his hand. He resisted the officers' attempt to place him under arrest; a struggle ensued; and, as Officer Mays attempted to subdue him, his gun misfired, fatally wounding Randy in the head.
Ten minutes later, the story had changed. The officers related that Randy emerged, armed, from the van and was shot immediately. Whichever story one prefers, when the ambulance arrived, a gun rested in Randy's hand.
The truth, which came to light after a long, and, for Randy's parents, agonizing nightmare of involvement with the Houston Police Department (HPD), is not pleasant. The taxi driver who had given chase, standing near his cab, and a local resident both saw the events. They presented a different story. Dolan, the taxi driver, testified as follows:
William G. List, who lived nearby, confirmed this account. I saw the boy get out of the van with his hands not clear up, but approximately, you know, raised to the point that you see them raised.... He still had to duck his head to get of the van and he still had his hands in the air, so they weren't, you know.... He got out.... The boy got out, the police officer blocked my view by standing in front of him or being in front of him, but the boy, you could still see, was bigger than the police officer. So he either kicked him or hit him or whatever, I don't know, but the boy went to the ground. And a few seconds later I heard gunshot go off.... This all happened within seconds. There was no time for any fighting or struggling, you know.
Officer Olin, under questioning by counsel, verified this account.
Knocked to the ground by the officers, Randy gave no resistance and was shot within seconds. He had no weapon, a 17-year old boy against several police officers.
Tragedy did not deter the officers from considering practicalities. What to do about the "mess"? According to Officer Holloway,
Indeed, as pointed out at oral argument, the mere fact that everyone understood the term "throw down" demonstrated its widespread use.
Why employ a throw down? As Holloway explained, "I had had nobody say anything definite about what was going on or anything and what was going to be done to protect Mays...." (emphasis added) Protection of an officer, then, was the name of the game. Holloway added: "I think that would be the same thought in any officer's mind ... to protect the officer from shooting somebody that was unarmed." Questioning from counsel developed this point:
That throw downs existed might be common knowledge, a fact of life at that time for Houston police officers, but did officers in fact use them? Officer Dillon replied in the affirmative:
And Officer Byrd conceded, As for his superiors,
The Websters did not believe the official version of that night's events. Mr. John Webster, Randy's father, came to Houston to find out the truth. Met at every turn with evasion if not hostility, he became convinced that the Houston police were covering up. He was right.
The evidence as to cover-up, while circumstantial, is no less damning. Dolan, the taxi driver, went to police headquarters the morning after the shooting to give a statement. A Lieutenant Eickenhorst interviewed him and later advised Police Chief Bond to "disregard" Dolan's account. Although investigating officers took photographs of the scene, no one bothered to study them. Officers Marriott and Binford, assigned to the no doubt unpleasant task of investigating their fellow officers, interpreted their mission as one of vindication. They never studied the autopsy report, which plotted the path of the bullet and proved that Randy was on the ground when shot. Nor did they order trace metal tests, ballistic studies, or a trigger pull examination-routine parts of such an...
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