Wilson v. Attaway

• Citation: 757 F.2d 1227
• Decision Date: 16 April 1985
• Docket Number: No. 83-8237,83-8237
• Parties: 17 Fed. R. Evid. Serv. 1380 E.J. WILSON, et al., Dearest Davis, et al., and Cassandra Linder, Plaintiffs- Appellants, v. Roland ATTAWAY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1227

757 F.2d 1227

17 Fed. R. Evid. Serv. 1380

E.J. WILSON, et al., Dearest Davis, et al., and Cassandra Linder, Plaintiffs- Appellants, v. Roland ATTAWAY, et al., Defendants-Appellees.

No. 83-8237.

United States Court of Appeals Eleventh Circuit.

April 16, 1985.

Brian Spears, Ralph Goldberg, Atlanta, Ga., John Carroll, Montgomery, Ala., Floyd Mincey, Dublin, Ga., for plaintiffs-appellants.

W.W. Larsen, Dublin, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before GODBOLD, Chief Judge, CLARK, Circuit Judge, and THOMAS ^*, District Judge.

GODBOLD, Chief Judge:

This is an appeal in three consolidated civil rights cases arising from events that occurred in Wrightsville, Johnson County, Georgia, in April and May 1980.

Several plaintiffs claimed that they were unconstitutionally arrested. All plaintiffs except Richard Turner claimed that they were exposed to unconstitutional conditions in the county jail. All plaintiffs are black, all defendants white. A jury returned verdicts for defendants on all issues.

Some plaintiffs contend they were entitled to summary judgment on the unconstitutional arrest issue. All except Turner contend they were entitled in judgment n.o.v. on the same issue. Numerous other points are raised concerning evidentiary rulings and other incidents at trial, many of which were not objected to when they occurred. We affirm in part and reverse in part.

I. Background

A. Facts

On April 5, 1980 a march commemorating Dr. Martin Luther King was conducted through several small towns in east central Georgia including Wrightsville. A parade route through Wrightsville had been approved on the request of the marchers. When they reached Wrightsville they deviated from the approved route and stopped in a parking lot in front of the courthouse. John Martin, one of the plaintiffs, testified that as the marchers left he requested Chief of Police Smith to help direct traffic but that Smith, the only policeman on duty, refused. Martin later claimed that Smith struck or pushed him and threatened him. Smith's testimony did not indicate that such an incident occurred. At least one witness testified that there "was a gesture of refusal and [Smith] walked away." T. 544. Martin obtained from a justice of the peace a warrant charging Smith with assault and battery.

On April 7, after Deputy Sheriff Tanner declined to serve the warrant on Smith, Martin and Rev. E.J. Wilson, a Wrightsville minister, went to the Johnson County sheriff's office in order, Martin testified, to present the warrant to Sheriff Roland Attaway. Attaway testified that he explained to Martin that a warrant against Smith would have to be issued by a judge rather than a justice of the peace. Attaway testified further that the office was in the middle of an accident investigation, that Martin and Wilson obstructed the investigation, and that Martin refused to leave when requested. Attaway swore out arrest warrants against Martin and Wilson for obstructing an officer and jailed Martin for a few minutes to end Martin's obstruction of the investigation.

These events led to protest rallies by blacks on the evenings of April 7 and 8 in front of the sheriff's office on the courthouse square. At the April 8 demonstration a crowd of whites assembled and violence broke out. Witnesses for the plaintiffs testified that the whites attacked the blacks and that county deputies and Wrightsville City police participated in the attack. Attaway and other defendants denied this. Following this altercation, Attaway swore out warrants for the arrest of several black demonstrators.

Between April 8 and May 19 other demonstrations occurred. They escalated in intensity, drawing more people and more diverse groups, including the Southern Christian Leadership Conference; the United Front, a group described as not committed to non-violence; a leader of the Klu Klux Klan and other Klansmen; J.B. Stoner, presently in Alabama prison for a 1980 bombing conviction; and the Revolutionary Communist Party.

Violence began again on May 19. In the late afternoon Wilson and others began driving around the courthouse square. Attaway told a deputy to arrest Wilson on the April 7 warrant and the deputy did so. Later Officer Garnto, the only on-duty officer of the Wrightsville City Police, drove his patrol car down South Valley Street, in the black-populated section of town. Garnto testified that as he approached Wilson's church he observed a crowd of blacks including Martin. He testified that Martin said "we'll get you tonight," whereupon an approving shout went up from the crowd.

Garnto picked up another Wrightsville officer who was coming on duty. Later, when he and the officer were speaking with state troopers in a Georgia State Patrol car, they heard shots and a gas explosion and saw a building on fire on South Valley Street. Both cars proceeded down South Valley Street. The State Patrol car was shot at in the vicinity of the burning building. It sped on down the street toward Wilson's church, about a block away. The city patrol car was fired upon. Five shots went through the windshield and Garnto was struck twice by bullets. He observed gunfire coming from the area of the Clover house, which is across the street from the burning building, and from in front of and around Wilson's church. He testified that at least a hundred shots were fired. He drove to the sheriff's office and reported these events to Attaway. He was then sent to the hospital in Dublin, a town about 20 miles away, accompanied by the other Wrightsville officer.

Meanwhile Martin had called the Georgia State Patrol office in Dublin and talked with Sgt. Henry Smith. Smith testified that Martin told him that the people in the community were upset, that he would be unable to control them any longer, and that Smith should meet him at the church to see for himself. Smith arrived with Sgt. Denny in an unmarked patrol car. He went and talked with Martin in front of the church among a crowd of 60 or 70 blacks "milling around ... in an uneasy manner."

He soon thereafter saw flames leaping up high without any noise except like the noise when one ignites gasoline. Gunshots then "rang out up and down the street, everywhere." From across the street automatic rifle fire struck the wall of the church above Smith's head. Smith heard 60 to 70 shots up and down the street. He crawled to his car and heard a police radio transmission, "I've been hit, I've been hit, I need help." Denny called from the patrol car and said "let's get the hell out of here before we get shot." When another State Patrol car arrived, Denny ordered it out of the area. Denny and Smith left the area. When they examined the other Patrol car they found bullet holes in it. Gunfire in the black section of town continued. Denny ordered the other Patrol car to go and wait behind the high school until it was joined by the Patrol's "riot squad." Smith went to Dublin to call his supervisor.

Meanwhile the Wrightsville Fire Department answered the fire alarm for the burning building. The city fire truck was damaged by gunfire, as well as the automobile of a volunteer fireman, as they arrived at the fire; the vehicles were driven away by the gunfire. While these events were occurring on South Valley Street, a woman was shot in the street and other women were calling the sheriff's office in alarm.

Sheriff Attaway heard hundreds of gunshots. Attaway went to South Valley Street where he arrested some 40 black people, including plaintiffs. Attaway testified that the persons arrested were turned over to the Georgia Bureau of Investigation for processing, interviewing, and booking.

The Georgia State Patrol riot squad arrived. Fred Taylor, a black leader from Atlanta, arrived and was assaulted by a crowd of whites near the courthouse. A state trooper ran to call the riot squad, and a deputy sheriff fought off the assailants and rescued Taylor.

B. The cases below

These events led to four civil suits. In Wilson v. Attaway, CV 380-24, Wilson, Martin, and Richard Turner filed a class action charging Attaway, two Johnson County deputy sheriffs, the City of Wrightsville, Chief of Police Smith, and three Wrightsville police officers with wrongfully beating them and breaking up the courthouse square rally of April 8 in violation of 42 U.S.C. Secs. 1981, 1983, 1985, and 1986.

In Davis v. Attaway, CV 380-65, Dearest Davis and nine other plaintiffs charged the Wilson defendants, plus Johnson County, members of the Wrightsville City Council the Commissioners of Roads and Revenue of Johnson County, and Georgia Bureau of Investigation Agent Morman with violations under 42 U.S.C. Secs. 1981, 1983, 1985(3), 1986 and 1988 and under state law. Plaintiffs also sought to have Sec. 20 of the Wrightsville City Charter, authorizing warrantless arrests of any person within city limits guilty of violating any city ordinance, declared unconstitutional.

Linder v. Attaway, CV 382-27, tracks the complaint in the Davis case.

Martin and Wilson filed a separate suit to enjoin criminal proceedings against them and 12 others.

These four cases were consolidated before trial. A state judge found that the state criminal charges, alleging an assault on Garnto, were not supported by probable cause and were dismissed. The Martin-Wilson suit was then dismissed. In the remaining three consolidated cases the district court entered judgments for defendants based on jury verdicts and denied motions for judgments n.o.v. and for new trials.

II. The motion for partial summary judgment

Plaintiffs alleged in the Davis case that they were arrested without probable cause. Appellants Horton, Rouse and Snell moved for partial summary judgment in the Davis case, seeking to establish Attaway's liability for their allegedly unlawful arrests on the evening of May 19. 6 Rec. 382-83. The court denied the motion, finding, in part, a genuine...