Bell v. Mickelsen, s. 80-2020

Decision Date01 April 1983
Docket NumberNos. 80-2020,80-2133,s. 80-2020
Citation710 F.2d 611
PartiesPaul BELL, Plaintiff-Appellee/Cross-Appellant, v. Einer MICKELSEN, Defendant-Appellant/Cross-Appellee, Wes Harper, Defendant.
CourtU.S. Court of Appeals — Tenth Circuit

Donald J. Sullivan, Cheyenne, Wyo., for plaintiff-appellee/cross-appellant.

Glenn Parker, Cheyenne, Wyo. (Harold Frederick Buck and James L. Applegate, Cheyenne, Wyo., with him on the brief), of Hirst & Applegate, Cheyenne, Wyo., for defendant-appellant/cross-appellee.

Before DOYLE, McKAY and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Paul Bell, who ran for the office of Sheriff of Platte County, Wyoming, in 1978 Mickelsen appeals. He argues that the trial judge erred in submitting the issues of punitive damages to the jury, and contests the section 1983 and tort claims generally. Bell cross appeals, arguing that the court erred in interpreting the jury's findings relating to waiver, and by reducing and apportioning the jury's award on the tort claims. We affirm in part and reverse in part.

brought this suit under 42 U.S.C. Sec. 1983 (1976) against Einer Mickelsen, the incumbent Sheriff and rival nominee, and Wes Harper, a resident of Platte County. Bell alleged that defendants' actions before, during, and after the elections of that year violated his right to privacy and his right to equal access to the ballot in a state campaign, both secured by the Constitution. He also alleged that their actions deprived him of his federally created right to security as a protected witness under the United States Marshals Service's Witness Security Program. In addition, Bell stated pendent state law tort claims against the defendants for negligence and outrageous conduct arising out of the same series of events. The case was submitted to the jury by special verdict. Based on the jury's answers, the trial court concluded that Bell had waived his section 1983 claims, and awarded him actual and punitive damages on the tort claims.

I. BACKGROUND

The facts were contested vigorously at trial, and the parties on appeal have seized the opportunity to renew their factual arguments, most of which are completely irrelevant to the issues before us. We review the evidence in the light most favorable to the verdict, resolving any factual conflicts to support the jury's findings. Gardner v. General Motors Corp., 507 F.2d 525, 527 (10th Cir.1974).

Although this lawsuit arose in Wyoming, the story begins in the Midwest. The plaintiff, Paul Bell, was born Paul Martin. In 1974, Martin was approached to join a drug-smuggling operation. He contacted federal law enforcement officials, and became an undercover agent for the Drug Enforcement Agency. Subsequently, the federal authorities raided the operation, and, at trial in Georgia in 1975, its members were convicted. Martin was the principal witness for the government. Prior to trial, Martin had been informed by Eldon Thompson, one of the defendants, that another defendant, Peter Davis, had put out a contract for the life of the then-undisclosed informant. An undercover agent had confirmed this information.

Because of the danger, Martin was taken into the United States Marshals Service's Witness Security Program. Martin and his family were moved to Des Moines, Iowa, given a legal name change to Bell, and provided with a fictional background identity. At that point, Paul Martin ceased to exist, and Paul Bell's story began.

In 1976, Bell removed himself and his family from the active protection of the Witness Security Program, and moved to Platte County, Wyoming. In 1978, he ran for County Sheriff using his new identity and federally provided background. At about that time, the incumbent sheriff, defendant Einer Mickelsen, aware of inconsistencies in Bell's asserted background, began compiling a dossier on him. Using his office as Sheriff, he obtained information from and through the local United States Marshals and Federal Bureau of Investigation offices. Mickelsen was joined by defendant Wes Harper, a resident of Platte County, in his efforts to discover Bell's true background.

In October of 1978, Harper went to the Midwest to follow leads obtained by Mickelsen through the federal law enforcement agencies and other sources. Mickelsen issued Harper a Deputy Sheriff's identification card for the trip. During the trip, Harper talked with various law enforcement officers, using the provided credentials and identifying himself as a deputy sheriff. In particular, Harper met with Deputy United States Marshal Dean Yeager, who had been in charge of Bell's protection After his meeting with Harper, Yeager alerted the Witness Security Program that Bell might be in danger. 1 The Marshals Service again relocated Bell and his family, removing them from Platte County. Mickelsen subsequently won the general election by a narrow margin.

                in Des Moines.  Harper told the Marshal that he, Harper, was going to Danville, Illinois, to "take whoever was interested over there back to Wyoming and show them Paul Bell's house."    Rec., vol.  III, at 395.  At that time, both Harper and the Marshal knew that Eldon Thompson, who had been convicted of drug violations as a result of Bell's/Martin's testimony, was out of prison on appeal bond and living in Danville.  Harper subsequently went to Danville and met with Thompson.  On his return to Wyoming, he conferred with Mickelsen concerning the information he had obtained and was reimbursed several hundred dollars by Mickelsen for expenses
                

Following the election, Mickelsen continued his activities concerning Bell, even though he knew that Bell was under the protection of the Witness Security Program and believed that Eldon Thompson and Peter Davis posed a threat to Bell. In December, Peter Davis flew into the county airport, where he was picked up by Sheriff Mickelsen and given a ride into town. Mickelsen then met with both Davis and Harper concerning Paul Bell. Davis was ostensibly seeking Bell to obtain information to be used in appealing his conviction. Davis set out with Harper, who was issued a new set of credentials by Mickelsen, to locate Bell. At the conclusion of this trip, Harper was paid several thousand dollars by Davis. Harper met with Mickelsen to discuss the fruitless search, and then continued trying to learn Bell's whereabouts, ceasing his efforts only when the present action was filed. When the trial began, Bell was living in an undisclosed area and was employed at a GS-12 rating in a government law enforcement service.

II.

SECTION 1983 CLAIMS

Bell asserted three claims under 42 U.S.C. Sec. 1983: first, that he was denied his right under the United States Constitution to have equal access to the state political process; second, that he was denied his constitutional right to privacy; and third, that Mickelsen's and Harper's actions deprived him of his rights to security arising under the federal Witness Security Program.

The jury's findings on Bell's section 1983 claims were as follows:

"Q1. Do you find by a preponderance of the evidence that either of the Defendants violated the Plaintiff's civil rights?

YES NO

A1. Einer Mickelsen X

---- ----

Wes Harper X

---- ----

If your answer is 'No' as to all parties, proceed to question fig. 5.

Q2. If so, was such violation of Plaintiff's civil rights either wholly or partially a proximate cause of the damages, if any, claimed by Plaintiff?

A2. YES NO

Einer Mickelsen X

---- ----

Wes Harper X

---- ----

Q3. Did the Plaintiff, in offering himself as a candidate for elective office, or otherwise, by his actions, waive or intentionally relinquish any of his constitutional rights protected by the United States Constitution or federal statutes and which you have found were violated by the Defendants or either of them?

A3. YES NO

X

---- ----

Q4. If you have answered 'Yes' to Questions 1 and 2, what sum, if any, do you deem fair and just to compensate the plaintiff for the losses he actually sustained?

500.00 MICKELSEN

A4. Actual Damages: $ 500.00 HARPER

--------------------

5000.00 MICKELSEN

Punitive Damages: $ 5000.00 HARPER "

--------------------

Rec., vol. I, at 214-15 (emphasis in original). 2

Notwithstanding the jury's finding of civil rights violations and its award of damages against both Mickelsen and Harper, the trial court concluded that the jury's finding of waiver covered all of the rights claimed by Bell under section 1983. Consequently, the court did not award Bell damages for these claims.

Bell argues on appeal that the district court erred in failing to award damages for the section 1983 claims. Specifically, he argues that the jury's answer on waiver, when combined with its award of damages, indicates the jury found that Bell had not waived all three of the claims pressed under section 1983, but only one or at most two of them. Mickelsen argues both that Bell had only one section 1983 claim, a contention that we reject summarily, 3 and that the trial court correctly interpreted the special verdict as a jury finding that Bell had waived all of his rights asserted under section 1983.

The jury clearly found that Bell's civil rights were violated and also that a waiver had occurred. It is impossible to determine whether the jury believed that the waiver was effective as to all or only some of Bell's section 1983 claims. However, that determination is unnecessary. Because of ambiguities in the jury instructions and the special verdict questions, to which no objections were raised below, we hold that the issue was not preserved for appeal.

The trial court gave the jury two instructions on waiver. After defining the constitutional right of privacy, the court instructed the jury:

"[T]he right of privacy guaranteed under the Fourteenth Amendment is not absolute. The rights of every person to be left alone must be placed in the scales with the right of others under the First Amendment to...

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