750 F.2d 1383 (7th Cir. 1984), 83-2799, McKinnon v. City of Berwyn

Docket Nº:83-2799.
Citation:750 F.2d 1383
Party Name:Larry L. McKINNON, Plaintiff-Appellant, v. CITY OF BERWYN, a municipal corporation, et al., Defendants-Appellees.
Case Date:December 19, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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750 F.2d 1383 (7th Cir. 1984)

Larry L. McKINNON, Plaintiff-Appellant,


CITY OF BERWYN, a municipal corporation, et al., Defendants-Appellees.

No. 83-2799.

United States Court of Appeals, Seventh Circuit

December 19, 1984

Argued Sept. 26, 1984.

As Amended on Denial of Rehearing Jan. 10, 1985.

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[Copyrighted Material Omitted]

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John A. Meyer, Chicago, Ill., for plaintiff-appellant.

Edmund J. Scanlan, Scanlan & Hartigan, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, and POSNER and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

McKinnon, the plaintiff in this civil rights action under 42 U.S.C. Sec. 1983, got a judgment for punitive damages against four policemen in Berwyn, Illinois, and an award of attorney's fees, but he is dissatisfied with the outcome in several respects, and appeals. He challenges the grant of judgment to two of the defendants notwithstanding the verdict--the City of Berwyn (the only defendant against which the jury awarded McKinnon compensatory damages) and the city's chief of police, Caithamer. He challenges the remittitur ordered by the judge of a portion of the punitive damages that the jury had awarded against another defendant, Montoro. And he challenges the judge's action in cutting down his attorney's fee request from $32,280 to $14,500.

The jury could have found the following facts in McKinnon's favor. Officer Montoro was in the process of breaking up with a woman who was living with him. A friend of the woman asked McKinnon (a security

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guard) to go to Montoro's home to help the woman remove her belongings. He agreed, and the removal was carried out without incident, but the next day Montoro and three other officers (the four being the defendants against whom the judge allowed McKinnon to recover damages) came from Berwyn to Cicero (Montoro nominally in the capacity of a complaining witness) and arrested McKinnon. Although Chief Caithamer knew or should have known that the officers were going to arrest McKinnon on Montoro's complaint outside of the jurisdiction of the Berwyn police, he did not ask why Montoro had not arrested McKinnon already or what McKinnon had been doing in Montoro's home, and did not order his officers to get an arrest warrant.

One of the officers explained to McKinnon in the course of the arrest: "You mess with one, you're going to mess with all of us." They then shoved McKinnon into the paddy wagon roughly, knocking his head against the door frame; and McKinnon heard Montoro say, "Let's give him a ride now." The driver drove so that McKinnon (who was handcuffed) was banged around against the walls of the wagon, and he was unconscious when they reached the Berwyn police station between 7:30 and 8:00 p.m. When he came to, he asked to see Chief Caithamer, to whom he denied having done anything wrong and offered to take a lie-detector test. Montoro's (false) explanation to Caithamer for the arrest was that McKinnon had pulled a gun on Montoro the day before in Montoro's home and threatened to blow Montoro's head off.

Although blood was running down McKinnon's face, and he complained of dizziness and asked for medical assistance, no one offered him medical aid--but the police were careful to wipe the blood away before taking his "mug shot." After being released on bond around midnight, McKinnon went home. The next day he checked into a hospital, where he spent five days recovering from his injuries.

McKinnon was charged with disorderly conduct, aggravated battery, and other offenses; all charges were dropped on motion of the state's attorney. After being told by two investigators that McKinnon probably was telling the truth, Caithamer merely told them to offer McKinnon a lie-detector test. Caithamer took no disciplinary action against Montoro or the other officers involved in the arrest.

The defendants put in evidence that cast the incident in a less horrific light--evidence, for example, that McKinnon (a security guard, as we said) was carrying a gun for which he did not have a proper permit when he was arrested, though he had not taken the gun into the Montoro home, and was arrested before the officers noticed that the permit was not proper; that the "gash" in his head was really just a cut, didn't bleed much, and maybe had been inflicted completely accidentally; that McKinnon and his captors were friendly at the police station--actually performing "tricks" (for example, demonstrating wrestling holds) for one another's entertainment. Even if all this was believed, it would not change the basic fact that Montoro and the three officers that accompanied him seized McKinnon without a lawful purpose (they had no idea he didn't have a proper permit for his gun), thereby depriving him of his Fourth Amendment rights (made applicable to state action by the Fourteenth Amendment) and entitling him to seek damages under 42 U.S.C. Sec. 1983. And the jury was not required to believe any of the defendants' evidence except that McKinnon had a gun when he was arrested for which he did not have a proper permit (this much was undisputed).

The jury was asked to assess compensatory as well as punitive damages against each defendant separately. It awarded compensatory damages of $100,000 against the City of Berwyn, but against the other defendants it awarded only punitive damages--$30,000 against Montoro, $10,000 against Caithamer, and a total of $10,000 against the other three officers. By granting judgment notwithstanding the verdict for the city and for Caithamer, the district judge threw out the $100,000 verdict against the city and the $10,000 verdict

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against Caithamer. He also ordered McKinnon to remit $20,000 of the $30,000 in punitive damages assessed against Montoro. The effect of all this was to reduce McKinnon's total judgment from $150,000 to $20,000.

The assessment of punitive damages against individual defendants creates no problem; punitive damages, like criminal fines, which they resemble, are always assessed individually. But the obligation to pay compensatory damages to rectify an inseparable injury for which several defendants are liable is joint and several. See Prosser and Keeton on the Law of Torts Sec. 52, at pp. 345-48 (5th ed. 1984). This means that each defendant is liable to the plaintiff for the whole of the plaintiff's damages, except that the plaintiff may not collect, from all the defendants together, more than those damages. The rule of joint and several liability holds even when there is a right of contribution, meaning that a defendant forced to pay a disproportionate amount of the plaintiff's damages may be able to insist that other defendants (or even nondefendant tortfeasors) reimburse him for some of the cost. Indeed, the whole point of contribution is to mitigate the effect of joint and several liability, which allows liability to fall disproportionately on one or some of a group of joint tortfeasors. We therefore need not worry about any right of contribution here; the jury should in any event not have been asked to assess compensatory damages against individual defendants, provided the defendants if liable at all were liable jointly for all McKinnon's injuries. See, e.g., Slotkin v. Citizens Casualty Co. of New York, 614 F.2d 301, 317-18 (2d Cir.1979); Annot., 46 A.L.R.3d 801, 808-13 (1972). They would be either if they had conspired against him or if it just was not possible to say what portion of his injuries would have been avoided if a particular defendant had not participated in the wrongful conduct. See Prosser and Keeton on the Law of Torts, supra, Sec. 52, at pp. 346-52.

Both grounds for joint liability--conspiracy and indivisible injury--may well have been present, especially the latter; for example, the injury allegedly done to McKinnon by the city and by Caithamer was indivisible from the injury done to him by the officers who actually arrested him and roughed him up. Nevertheless, as the parties jointly requested the verdict form asking the jury to assess compensatory damages individually, McKinnon, even though he also and inconsistently requested that the jury be instructed not to apportion compensatory damages among the defendants, will not be heard to complain about it now. In any event, his appeal does not challenge the judge's refusal to give the requested instruction. We mention the point only to give guidance for the future--which may include further proceedings in this case.

The judge threw out the verdict against the City of Berwyn because McKinnon had not shown that the city itself, as distinct from the individual officers, had violated McKinnon's constitutional rights. This determination was in accordance with the record; McKinnon had made no serious effort to prove either that the officers were acting pursuant to a city policy or that the chief of police was a policy-making official. See Monell v. New York City Department of Social Services, 436 U.S. 658, 691-94, 98 S.Ct. 2018, 2036-37, 56 L.Ed.2d 611 (1978); Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir.1983). But we agree with McKinnon that there was an insuperable procedural obstacle to the judge's action. Rule 50(b) of the Federal Rules of Civil Procedure authorizes a trial judge to grant judgment notwithstanding a jury verdict only if the moving party had moved for a directed verdict. The lawyer representing all six defendants (the five officers, plus the city) had made five motions for directed verdict at the close of McKinnon's case, each for a different individual defendant--but none on the city's behalf. (The lawyer also failed to renew the motions for directed verdict at the close of all the evidence; but this, as we shall see when we came to Caithamer's motion for judgment notwithstanding the verdict, is a much less serious

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procedural default than not moving for a directed verdict in the first...

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