746 F.2d 1205 (7th Cir. 1984), 82-2102, Bell v. City of Milwaukee

Docket Nº:82-2102, 82-2103 and 82-2138.
Citation:746 F.2d 1205
Party Name:Patrick BELL, Sr., etc., et al., Plaintiffs-Appellees, v. CITY OF MILWAUKEE, Howard Johnson and Edwin Shaffer, Defendants-Appellants. Patrick BELL, Sr., etc., et al., Plaintiffs-Appellees, v. Thomas GRADY, Jr., Defendant-Appellant. Patrick BELL, Sr., etc., et al., Plaintiffs-Appellants, v. CITY OF MILWAUKEE, et al., Defendants-Appellees.
Case Date:September 04, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1205

746 F.2d 1205 (7th Cir. 1984)

Patrick BELL, Sr., etc., et al., Plaintiffs-Appellees,

v.

CITY OF MILWAUKEE, Howard Johnson and Edwin Shaffer,

Defendants-Appellants.

Patrick BELL, Sr., etc., et al., Plaintiffs-Appellees,

v.

Thomas GRADY, Jr., Defendant-Appellant.

Patrick BELL, Sr., etc., et al., Plaintiffs-Appellants,

v.

CITY OF MILWAUKEE, et al., Defendants-Appellees.

Nos. 82-2102, 82-2103 and 82-2138.

United States Court of Appeals, Seventh Circuit

September 4, 1984

Argued Nov. 3, 1983.

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Walter F. Kelly, Sutton & Kelly, Thomas Jacobson, Jerome Krings, Jacobson, Sodos & Krings, Curry First, Perry, First, Reiher, Lerner & Quindel, Milwaukee, Wis., for plaintiffs.

Robert G. Ott, Milwaukee County Counsel, Milwaukee, Wis., for Milwaukee County and Office of Milwaukee County Dist. Atty.

Rudolph M. Konrad, City Atty., Milwaukee, Wis., James M. Fergal, Milwaukee, Wis., for defendants.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and KELLEHER, Senior District Judge. [*]

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CUMMINGS, Chief Judge.

TABLE OF CONTENTS _____ I. FACTS OF CASE ................................... 1214 Judicial Proceedings ............................ 1222 II. EFFECT OF THE 1961 SETTLEMENT OF PRIOR STATE SUIT ............................. 1226 III. STATUTE OF LIMITATIONS DEFENSE .................. 1228 IV. BACKGROUND OF SECTIONS 1981, 1983, 1985, 1986 AND 1988 OF THE CIVIL RIGHTS ACTS ..................................... 1232 V. SECTION 1983 CLAIM OF DANIEL BELL'S ESTATE ................................... 1234 VI. SURVIVAL OF DOLPHUS BELL'S SECTION 1983 AND CONSPIRACY CLAIMS .......................................... 1241 VII. SECTION 1983 CLAIMS OF DOLPHUS BELL'S ESTATE AND THE SIBLINGS .................. 1242 A. Whether the Father or Siblings Possessed a Constitutional Liberty Interest in Their Association With Daniel Bell ......................................... 1242 B. Recovery for Lost Society and Companionship and Common Law Remedies ...................... 1248 C. Wisconsin Wrongful Death Law and the Question of Inconsistency ................ 1250 VIII. CONSPIRACY CLAIMS OF DOLPHUS BELL AND THE SIBLINGS ........................... 1253 A. Conspiracy to Conceal the Facts .............. 1255 B. Invidious Discrimination ..................... 1259 C. Deprivation of Due Course of Justice ......... 1260 D. Compensatory Damages ......................... 1265 E. Punitive Damages ............................. 1266 IX. INDEMNIFICATION AND CITY LIABILITY FOR THE PARTICIPATION OF WOELFEL AND GLASER IN THE CONSPIRACY ...................................... 1268 X. LIABILITY FOR THE CONDUCT OF McCAULEY ........................................ 1272 XI. GRADY'S ISSUES .................................. 1273 A. Admissibility of Criminal Complaint .......... 1273 B. Examination of Kasza ......................... 1276 C. The Jury's Lack of Knowledge of the Duration of Grady's Prison Sentence .......... 1277 XII. THE JURY FINDING IN REGARD TO THE STOP, CHASE, AND ATTEMPTED APPREHENSION OF DANIEL BELL ..................... 1278 XIII. CONCLUSION ...................................... 1279

The appeals in this extraordinary case present several important issues involving the Reconstruction period civil rights statutes, 42 U.S.C. Secs. 1981, 1983, 1985, and 1986, and their interplay with state law, along with procedural and evidentiary issues. Defendants Thomas Grady, Jr., City of Milwaukee, Howard Johnson, and Edwin Shaffer appeal from the jury verdict and judgment of the United States District Court, Eastern District of Wisconsin, in a trial extending more than ten weeks, finding that Grady as an officer of the Milwaukee Police Department deprived Daniel Bell and his family of their constitutional rights by unlawfully shooting and killing Daniel Bell on February 2, 1958, under color of state law. Defendants also appeal the finding that Grady, Chief of Police Johnson, and Detective Sergeant Shaffer unlawfully conspired to conceal the true facts of Daniel Bell's death. Defendants appeal the various components of the judgment of $1,590,670 in favor of plaintiffs Patrick Bell, Sr., Alfonzo Bell, Doffer Bell, Eddie Bell, Ernest Bell, Henry Bell, Jimmy Bell, Joseph Bell, Lawrence Bell, Roosevelt Bell, Sylvia White Bell, and Walter Bell, the brothers and sister of Daniel Bell, as well as to Patrick Bell, Sr. as special administrator of both the estate of Daniel Bell and the estate of Dolphus Bell, Daniel's deceased father. Defendants raise several other issues, and plaintiffs cross-appeal. We affirm in part and reverse in part.

I. FACTS OF CASE

The rather substantial body of facts, relevant to the many issues raised on appeal, is as follows:

On Sunday, February 2, 1958, Milwaukee Police Officers Thomas Grady, Jr. and Louis Krause met by chance at approximately 8:30 p.m. at the corner of North 7th Lane and West Wright Street. The officers stopped their motorcycles at the curb (both were assigned to traffic duty at the

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time) and each smoked a cigarette and talked. Krause claimed that Grady at this time told Krause he needed some more arrests that night, so that he was going to check some vacant homes and arrest some "niggers". 1

Grady saw an automobile pass that did not have a tail-light. He started his motorcycle and pursued the car, Krause following close behind. Grady stopped the car east of the above intersection. Grady testified that as he approached the car, he believed that the driver fit the description of a man wanted for armed robbery listed on a Milwaukee Police Department daily bulletin. Suddenly the driver's door swung open and the driver jumped out and ran to the north curb of West Wright Street and then ran east. The runner, Daniel Bell, said nothing and held nothing in his hands. The officers pursued Bell to the intersection of West Wright and North 6th, where Bell ran north on 6th. In the course of the chase both officers yelled "halt" and fired several warning shots upward into the air.

Krause commandeered a car proceeding south on 6th Street, ordered it to turn around at the intersection, proceeded north, and picked up Grady. The driver was behind the wheel, Krause in the middle, and Grady next to the door. Both officers had their revolvers in their hands. When the car was just north of the fleeing Daniel Bell, it slowed down and Grady and Krause jumped out of the car. Grady, running ahead of Krause, mounted a snowbank and yelled at the person to stop running. Bell ran toward the house located at 2650 North 6th Street and then toward the southwest corner of the house. As Grady caught up with Bell, he still had his loaded revolver in his right hand. He extended his right hand to grab the fleeing Bell by the right shoulder and as he did so the gun discharged, shooting Bell in the upper back. 2

Grady holstered his revolver, took off his glove and felt the outstretched wrist of Daniel Bell and said "I think he's dead." Krause took off his glove and reached with his right hand to the jugular vein on the neck, felt no pulse, and said, "I guess you're right. He's dead." Krause testified at trial that Grady then said, "He's just a damn nigger kid anyhow." Grady denied making the statement.

At this time a citizen witness, William Hochstaetter, who lived directly across the street and heard the shot, went outside and across the street to where Bell lay on the service walk in the presence of the two Milwaukee police officers. According to his testimony at the coroner's inquest subsequent to the shooting, Hochstaetter looked at the body and observed no knife in Bell's hands. Hochstaetter, after being told by the officers to move on, watched from his window, but his view of Bell's body was obstructed by the two officers leaning over Bell. 3

Grady pulled out a small knife from his pocket, but Krause told him "that knife isn't big enough, Tom." Grady closed the knife, placed it back in his jacket pocket, and produced a larger pocket knife. Krause approached the nearby house in

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order to call the district station. As Krause was waiting at the front door of the house for someone to answer his knock, he saw Grady place the knife in Bell's right hand and close the hand around the knife. Krause was then let into the house, where he used the telephone to call the district station and to report that someone was shot.

After Krause returned, he and Grady had a conversation which "dealt with the story they would tell people in charge, officials, on what happened." 4 They decided to say the fleeing person yelled when he jumped out of the automobile, "You won't catch me, I'm a holdup man!", and that he was armed with a knife. 5

Police officers and detectives began to arrive within minutes after the shooting. Among those arriving at the scene were defendant Detective Sergeant Edwin Shaffer and uniformed police officers Detectives Russell Vorpagel and Howard Hughes. Shaffer asked Krause "what happened" and Krause responded "Sarge, we shot a guy." Shaffer told Krause to go sit in Shaffer's car. Uniformed officers outlined the body in the snow with chalk and the body was removed by a police ambulance crew. Detectives Vorpagel and...

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