Parrott v. Wilson
| Decision Date | 23 June 1983 |
| Docket Number | Nos. 81-7843,82-8679,s. 81-7843 |
| Parties | 13 Fed. R. Evid. Serv. 1149 Louise PARROTT, individually and in her official capacity as Administratrix of the Estate of Jeffrey Parrott, deceased, Plaintiff-Appellant, v. Max V. WILSON, etc., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
J.M. Raffauf, Decatur, Ga., for plaintiff-appellant.
James A. Goldstein, Jr., Douglas B. Warner, Griffin Patrick, Jr., Patrick & Warner, P.C., Atlanta, Ga., for defendants-appellees.
Appeals from the United States District Court for the Northern District of Georgia.
Before JOHNSON and ANDERSON, Circuit Judges, and HUNTER *, District Judge.
Appellant, Louise Parrott, Administratrix of the Estate of Jeffrey Parrott, brought this Sec. 1983 1 action against Max V. Wilson and James E. Paugh, Deputy Marshals of the State Court of Fulton County, and assorted county officials alleging that the fatal shooting of her son Jeffrey Parrott by Marshal Wilson constituted a deprivation of federally protected rights. Appellant also appended state claims for trespass and wrongful eviction. After the presentation of her case, the court below entered judgment in favor of all defendants. After careful consideration of the multitude of issues raised on this appeal, we affirm.
Our examination of the record discloses the following sequence of events. Mr. Frank L. Johnson owned a small house on Campbellton Road in Atlanta, Georgia. Beginning in 1971, he rented this house to Kenny Howell. Toward mid-summer of 1977, Howell fell behind in his rent payments. After attempting to work the problem out with Howell, Johnson instituted formal eviction proceedings in August of 1977. Sometime in late August or early September, Deputy Marshals Wilson and Paugh served notice of the impending eviction by tacking the eviction notice to the door of the Campbellton Road residence. At that time they were informed by an unidentified youth that Howell no longer lived there, but that someone else lived in the house who had stated an intention to ignore the eviction. Soon after the Marshals served the eviction notice, Johnson himself went to the Campbellton Road residence to perform some repairs. While there another young man, apparently Jeffrey Parrott, came out of the house and placed the eviction papers on the windshield of Johnson's car, saying that he had no intention of either leaving or paying any rent. Johnson did not inform the Marshals of this encounter. The evidence is fairly persuasive, however, that Johnson had neither rented the residence to Parrott nor previously been aware of his presence on the property.
At approximately 10:00 a.m. on the morning of September 9, Johnson met Wilson and Paugh at the Campbellton Road residence to effect the eviction. At that time he told the Marshals that although he did not think anyone was in the house he was not sure. The Marshals stated that they would need some help emptying the house of its furniture, whereupon Johnson left to secure the necessary labor.
Upon Johnson's departure, Wilson and Paugh attempted to gain entry to the house. After knocking and identifying themselves as Marshals, they unsuccessfully attempted to open the front door. At this point Wilson apparently told Paugh to check the back of the house while he checked the side. According to both Marshals, in proceeding around the house they shouted out their identities and their purpose several times, to no avail. While Paugh was at the back of the house Wilson located a side door, forced it open, and entered into a living room area. Wilson testified that after entering the house he heard music playing at a very low volume; he therefore pulled his gun. After examining the kitchen to his immediate left, Wilson holstered his gun and stepped back into the living room where he was confronted by Jeffrey Parrott. Parrott was armed with a sawed-off shotgun which he aimed directly at Wilson.
According to Wilson, Parrott accused him of breaking into the house and stated his intention to blow Wilson's head off. 2 While Wilson was attempting to persuade Parrott to leave peacefully, Marshal Paugh entered through the side door. Parrott then shifted his position slightly in order to cover both Wilson and Paugh with the shotgun. At about this time, Frank Johnson returned with two men to help him move the furniture. Wilson and Paugh both testified that upon noticing Johnson's arrival Parrott stated that if Johnson had been the one who had entered the house Parrott would have "blowed his head off." Hearing this, Wilson told Paugh to go outside and warn Johnson not to come near the house. Parrott apparently did not object to Paugh's leaving the house but refused to let Wilson leave. 3
According to Johnson and his two assistants, Wardell Sharp and John Godfrey, soon after they arrived at the residence Paugh came out of the house and told them that there was a man in the house with a gun and that he had threatened to kill Johnson. Soon after Paugh conveyed the warning to Johnson, three shots rang out. 4 At this, Marshal Paugh cautiously headed back toward the house, whereupon Wilson came out of the door with Parrott's shotgun in his hand.
Wilson's precise words and actions upon leaving the house were a matter of some dispute. According to Paugh, Wilson's first statement was "I shot the man in self defense," and then Wilson broke down the shotgun to determine whether it was loaded. According to Sharp, when Wilson came out of the house he threw the shotgun on the ground and said "I guess the son-of-a-bitch is dead now." Godfrey testified that Wilson apparently had already broken the shotgun down when he came out of the house and that he held two shells in his hand. 5
The only living witness to the events that actually transpired inside the house after Paugh's departure was Marshal Wilson. He testified that after Paugh left the house he continued his attempts to talk Parrott out of resisting the eviction. At all times Parrott had the shotgun aimed directly at Wilson, and Parrott continued to assert that he would not leave the property. Soon Parrott began to back up towards an entrance to a bedroom. Wilson could see that immediately to one side of the doorway was a bed with an iron railing; he could not see the entire bed. Upon reaching the doorway Parrott leaned towards the bed, apparently reaching for something outside of Wilson's line of vision. The shotgun remained trained directly on Wilson. Wilson stated that he believed Parrott was reaching either for another gun or for shells. With Parrott momentarily distracted Wilson drew his gun and fired three rounds rapidly at Parrott. Wilson saw the first round strike Parrott in the chest, spinning him around; the second round struck Parrott in the back and Wilson did not see the third round hit him. Wilson then picked up the shotgun and unloaded it as he exited the house.
According to Wilson, throughout the course of the incident there was a distance of several feet between Parrott and him. He stated that at the time of the shooting he was approximately 4 to 6 feet from Parrott, who had been backing up towards the bedroom door. However, Dr. Joseph L. Burton, the Fulton County Medical Examiner, testified that Parrott's chest wound indicated that from "muzzle to target would have been less than 12 inches." As for the back wound, Burton determined a "range of approximately 24 inches, plus or minus 4 to 6 inches." Burton also testified that the bullets which struck Parrott's body apparently had been fired in rapid succession. Wardell Sharp, however, testified that there had been a pause between each shot.
After leaving the house subsequent to the shooting, Wilson and Paugh notified the police. No legal or disciplinary action was taken against the Marshals.
On September 7, 1979, Louise Parrott, the mother of the deceased, filed her complaint under 42 U.S.C.A. Sec. 1983 (West 1981), alleging that defendants' actions deprived Jeffrey Parrott of life and liberty without due process and equal protection of the law. Appellant also asserted pendent state claims for trespass and wrongful eviction. 6 The theory of liability as to Marshals Wilson and Paugh was that the use of unreasonable deadly force deprived Parrott of his constitutional rights. As to the Fulton County defendants, appellant alleged that Parrott's death was the result of a policy or custom officially adopted by the County, and that the County defendants were guilty of gross negligence in failing properly to train and supervise Deputy Marshals. 7 The defendants' primary defense was that Marshal Wilson was legally justified in using deadly force against Parrott.
After lengthy discovery, which was extended by stipulation on many occasions, this cause was heard by the court sitting without a jury in September of 1981. At the close of plaintiff's case, the district court expressly found that the defense of justification had been proved and therefore entered judgment for all of the defendants. From this judgment plaintiff appeals, asserting myriad errors on the part of the trial court. Several of these assertions deserve discussion. 8
Appellant filed her complaint in September of 1979. At that time she did not request a trial by jury, to which she was otherwise entitled. On April 17, 1981, approximately a year and a half after the defendants answered her original complaint, appellant made her untimely request for a jury trial pursuant to Rule 39(b) of the Federal Rules of Civil Procedure. 9 Defendant Johnson formally opposed this motion on the ground that he would be seriously prejudiced because for many months he had structured his trial preparation in anticipation of a bench trial. He also alleged prejudice by virtue of the initial involvement of an insurance company as a party. At the time of appellant's motion, discovery had not ended...
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