Gero v. Henault, s. 83-1837

• Decision Date: 29 August 1984
• Docket Number: Nos. 83-1837,83-1838,s. 83-1837
• Citation: 740 F.2d 78
• Parties: Dale J. GERO, Plaintiff, Appellant, v. Richard A. HENAULT, et al., Defendants, Appellees. Dale J. GERO, et al., Plaintiffs, Appellees, v. Richard A. HENAULT, et al., Defendants, Appellees. City of Pittsfield, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 78

740 F.2d 78

Dale J. GERO, Plaintiff, Appellant, v. Richard A. HENAULT, et al., Defendants, Appellees.

Dale J. GERO, et al., Plaintiffs, Appellees, v. Richard A. HENAULT, et al., Defendants, Appellees.

City of Pittsfield, Defendant, Appellant.

Nos. 83-1837, 83-1838.

United States Court of Appeals,

First Circuit.

Argued May 8, 1984.

Decided July 27, 1984.

Rehearing and Rehearing En Banc Denied Aug. 29, 1984.

Francis D. Dibble, Jr., Springfield, Mass., with whom Bulkley, Richardson & Gelinas, Springfield, Mass., was on brief, for Dale J. Gero.

John F. Rogers, Pittsfield, Mass., with whom Leonard H. Cohen, and Cain, Hibbard, Myers & Cook, Pittsfield, Mass., were on brief, for appellee Anthony J. Pires.

Edward M. Reilly, Pittsfield, Mass., for City of Pittsfield.

Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

These appeals arise from a 42 U.S.C. Sec. 1983 civil rights action and two pendent state law claims of assault and false imprisonment. Dale J. Gero and his wife, Donna, brought suit against Richard A. Henault and Edward Sherman, detectives in the police department of Pittsfield, Massachusetts, Anthony Pires, captain of detectives and acting chief of police at the time the alleged civil rights violation occurred, and the City of Pittsfield. After a jury trial, a verdict was returned for all defendants on the claims by Donna Gero. The jury found for the defendants Henault and Sherman in Dale J. Gero's action against them. It returned verdicts in favor of Gero in his actions against Pires and the City of Pittsfield. The district court set aside the verdict against Pires and entered judgment n.o.v. It denied Pittsfield's motions for judgment n.o.v. and for a new trial.

Gero appeals the judgment n.o.v. for Pires. The city appeals the court's refusal to grant its motions for judgment n.o.v. and for a new trial. Gero has not appealed the judgments on the verdicts in favor of Henault and Sherman. Donna Gero has not appealed.

We affirm the judgment n.o.v. for Pires, but for different reasons than those given by the district court, and reverse the judgment against the city.

The issue is whether the arrest of Dale J. Gero was the result of conduct illegal under the United States Constitution and/or state law arising from an approved policy and procedure followed by the Pittsfield Police Department or was simply a case of mistaken identity. The specific constitutional violation alleged was the issuance by the city and the use by the police of an invalid arrest warrant.

I. THE FACTS

Our review of the evidence is guided by two standards. On the judgment n.o.v. for Pires, the test is whether, as a matter of law, only one conclusion can be drawn. Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 733 (1st Cir.1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 728, 1191, 75 L.Ed.2d 436 (1983). Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 990 (1st Cir.1978). In the case against the city, we review the evidence and the inferences that can be fairly drawn from it in the light most favorable to the plaintiff Gero, the prevailing party. Robinson v. Watts, supra, at 732; DeVasto v. Faherty, 658 F.2d 859, 861 (1st Cir.1981); Engine Specialities v. Bombardier, Ltd., 605 F.2d 1, 9 (1st Cir.1979), cert. denied, 446 U.S. 983, 100 S.Ct. 2964, 64 L.Ed.2d 839 (1980).

We start with the testimony of Cynthia Phiffer. In early October 1979, Cynthia and her sister met a man called "J.D." at Danny's Bar in Pittsfield. After he had bought them a drink, Cynthia and her sister asked him to drive them home, which he did. On the drive home, J.D. said that his real name was Eric Walters, but that everybody called him J.D. He showed the women his forearms, one of which had scars across it. Walters told them that the scars were the result of a suicide attempt when he was in Walpole State Prison. He also said that he had guns and intended to rob a bank.

Walters and Phiffer met again by chance at Danny's Bar on October 15. This time the meeting was not friendly. Cynthia was playing pool; she looked across the room and thought that Walters was about to strike her sister, who was three or four months pregnant. Cynthia ran over to Walters and told him not to hit her sister, whereupon he promptly punched Cynthia in the jaw. Cynthia punched back, a fight ensued, and at one point Walters came after Cynthia with a knife. At the end of the fray, Cynthia had lost one tooth and two others were loosened. She went to the emergency room of the Pittsfield Hospital for medical treatment.

The next afternoon Cynthia went to the police station, gave a statement and signed an assault and battery complaint. She described her assailant as having the name J.D. (Eric) Walters, being six feet two inches in height, weighing two hundred pounds, having shoulder length blonde hair with a possible beard and mustache, and with scars on the left forearm. The statement describes Walters' vehicle as a 1967 yellow van with Arizona license plates. In her statement, Phiffer said that on the ride home with Walters the week before the assault, he showed two handguns to her and her sister, "a snubnose 38 and a Bulldog 38."

The police files contained a memo dated October 22 stating that Cynthia Phiffer called and identified the man who assaulted her as Eric Walters, supposedly living with a girl named Pat, a member of a motorcycle group called the Warlocks, on Brown Street in Pittsfield.

The next date of significance is November 1, 1979, when Walters attacked one David Sinopoli with a club on the street outside of Danny's Bar. Sinopoli sought refuge in a truck owned and driven by a friend, Gene Sayers. Another companion, William Decelles, was also in the truck. Walters smashed a window of the truck with the club before it got started. Walters then chased the truck in a blue van; there were two others with him. Several rifle shots were fired from the van through the cab windows of the truck. Sometime during the chase, the truck rammed the radiator grille of the van. Sinopoli, Sayers and Decelles eventually eluded Walters.

The police had been alerted to the incident shortly after the chase started and later that night located and impounded the van. It still had a piece of the truck bumper in its grille. After properly obtaining a warrant based on the statements of Sinopoli, Sayers and Decelles and other witnesses the police searched the van. They seized several bags of marijuana, a baseball bat with pieces of glass embedded in it, a number of rounds of rifle and handgun ammunition, including some .22 hollow point bullets, a prescription vial and a social security card bearing the name Lee Barrett, and several photographs. The van was registered to a woman in Phoenix, Arizona, and had Arizona license plates.

One of the photos taken from the van was inserted into an eight-photo lineup and shown to Sayers. He identified the photo as being that of the man who attacked Sinopoli with a club and drove the blue van. This photo was later determined to be of Eric Walters. The police made fifteen to twenty copies of Walters' photo and distributed them throughout the department.

On November 2, Officer Sporbert of the Pittsfield Police Department reported that he had previously stopped a yellow Ford van with Arizona license plates in the process of investigating an armed robbery of a store. The operator identified himself as Lee Barrett from Arizona. He claimed that he was living out of the van and had no local address. A computer check cleared both Barrett and the van. On November 3, Sporbert amended his report to state that the picture distributed was that of the person operating the yellow Ford van he had stopped.

On November 3, Detective Henault, who had been investigating the assault, chase and shooting involving Walters, went to the clerk-magistrate of the Pittsfield District Court and swore out three complaints for assault with intent to murder against "Lee Barrett a/k/a Erick Walters." Based on what he had been told by Henault, the clerk-magistrate determined that there was probable cause to issue an arrest warrant, and he did so, using the same names as on the complaints, "Lee Barrett a/k/a Erick Walters." No other descriptive information was stated on the face of the warrant. The arrest warrant was taken to the police station.

On November 13, Cynthia Phiffer ran into the police station and said that she just saw "J.D.--Eric Walters" driving a blue pickup truck. She was referred to Detectives Henault and Sherman who were working on the Walters case. Henault testified that when he heard Phiffer say that she saw "J.D. Walters," it suddenly "clicked" that the person who had assaulted her was the same one who had been involved in the chase and shooting on November 1. Phiffer agreed to come with Henault and Sherman to help find the blue pickup truck and Walters. On the way out of the police station, Henault picked up the arrest warrant. There was no photo attached to it, but both Henault and Sherman were familiar with Walters' photo. Phiffer pointed out the truck which she said Walters was driving. Because of Walters' history of violence, Sherman radioed for assistance and a cruiser manned by two uniformed policemen was dispatched. Phiffer told the detectives that she was afraid of Walters and she remained crouched behind the seat of the police car so the driver of the truck could not see her. Therefore, when the arrest was made she was not in a position to get a good look at the driver. When the blue truck stopped because of road construction, Detective Sherman, with Henault and a uniformed officer as backups, arrested the driver at pistol point. Both Sherman and Henault testified that the man arrested looked like the photo of Walters, with which they were familiar.

The person arrested was not Walters, but Dale J. Gero of Dalton, Massachusetts. After ordering Gero out of the truck and patting him down, the...