Griffin v. Hilke

• Decision Date: 22 January 1987
• Docket Number: No. 86-1152,86-1152
• Citation: 804 F.2d 1052
• Parties: Eric A. GRIFFIN, Appellee, v. Gregory HILKE and Officer Francis Stoll, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1052

804 F.2d 1052

Eric A. GRIFFIN, Appellee, v. Gregory HILKE and Officer Francis Stoll, Appellants.

No. 86-1152.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 10, 1986.

Decided Nov. 6, 1986.

Rehearing and Rehearing En Banc Denied Jan. 22, 1987.

Julian Bush, St. Louis, Mo., for appellants.

James E. Hullverson, Jr., St. Louis, Mo., for appellee.

Before ROSS, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

St. Louis police officers Gregory Hilke and Francis Stoll appeal the district court's judgment based on a jury verdict awarding Eric A. Griffin $750,000 in damages under 42 U.S.C. Sec. 1983. For the reasons discussed below, we hold that the district court erred in denying defendants' motion for judgment notwithstanding the verdict or a new trial. We reverse the judgment of the district court, dismiss defendant Stoll and remand for a new trial for defendant Hilke.

I. BACKGROUND.

At approximately 12:30 a.m. on February 18, 1978, Officer Stoll heard on his radio that shots had been fired at 3971 Lafayette in St. Louis. He drove there and saw three men fighting on the sidewalk. He stopped his car and placed it in such a manner as to prevent a car with another man inside from leaving the scene. He then exited his car and attempted to break up the fight. At this time, one of the three men, Griffin, began to leave. Stoll heard one of the others say that Griffin had their money. Stoll called out "come back here nigger" and fired a warning shot in the air. Griffin fled on foot with Stoll in pursuit. Stoll followed Griffin around several buildings and over at least one fence, until he lost Griffin at McRee, an east-west street that runs parallel one block to the north of Lafayette.

During the chase, Stoll, carrying a hand-held radio, sent a broadcast over police airways that he was chasing a suspect wanted for a possible assault and robbery. Although the parties dispute whether Stoll told the radio dispatcher that the suspect was armed, Stoll concedes that the broadcast which followed included the words "is armed" or "armed suspect." Stoll also testified that he based his radio report on the broadcast he initially heard and on his perception that Griffin was running with his coat draped over his arm.

Officer Hilke heard Stoll's broadcast warning from his patrol car which was parked approximately one-and-one-half to three blocks away from 3971 Lafayette, the site of the alleged original shots. In the radio transmission, Hilke heard the phrase "armed" or "is armed," which Griffin contends was later inserted into the tape. Hilke drove to the alley behind 3971 Lafayette, exited his car and looked around. He saw Griffin run across the alley. Hilke also claimed that Griffin had his coat draped over his arm. Hilke took out his gun and pursued Griffin.

Griffin ran north toward McRee. When Hilke reached McRee he called to Griffin to stop. Griffin turned around and saw Hilke, but continued to flee. Hilke tripped and fell down some steps leading from the sidewalk up to the house at 3928 McRee. When he regained his balance, Hilke fired a warning shot. Griffin continued to run, heading north across McRee, and west down an alley running parallel to McRee. He then cut through yards, jumping over fences toward Blaine Avenue, with Hilke in pursuit. Hilke testified that, "As [Griffin] would go over a fence, I would be approaching the fence and he would be in the middle of a yard as I was * * * going over one of the other fences." (Tr. 11/5 at 78.)

Finally, from a distance of 30 to 40 feet, Hilke shot Griffin in the leg. Hilke testified that he believed Griffin's escape was imminent. He did not know how many fences lay ahead of Griffin. He aimed at the bottom of Griffin's leg because he did not want to kill Griffin.

Hilke testified that he was afraid to run up to Griffin for fear he would be shot. Hilke also testified that he was concerned that Griffin might shoot other officers who had been called to the scene and were unaware of Griffin's precise location. The police did not find a gun on Griffin's person or in the surrounding area, however.

As a result of the shooting, Griffin's leg was amputated below the knee. Following the loss of his leg, Griffin has been hospitalized for depression and has attempted suicide.

In July 1978, Griffin filed suit against Hilke, in Missouri state court, alleging tortious battery. Griffin subsequently amended his petition several times, eventually alleging civil rights violations under 42 U.S.C. Sec. 1983 against both Stoll and Hilke. The case was removed to federal district court in February 1983. Following a six-day trial, in November 1984, the jury returned a verdict against both Stoll and Hilke for damages of $750,000. The district court denied Stoll's and Hilke's motion for judgment n.o.v. or, in the alternative, for a new trial. This appeal followed.

II. DISCUSSION.

A. Deprivation of Liberty Without Due Process.

Stoll and Hilke ("the police") contend that the district court erred by first denying their motion to dismiss on the ground that Griffin failed to state a cause of action, and second, by denying their motion for judgment n.o.v. or a new trial.

1. Stoll.

The police argue that the only aspect of Stoll's conduct which could be deemed a cause of Griffin's injury was his broadcast that he was chasing a suspect wanted for a possible assault and robbery. Stoll allegedly based this broadcast on (a) the initial report that shots had been fired; (b) the fight which he saw; (c) the claim he heard that Griffin had taken money; (d) Griffin's flight; and (e) his perception that Griffin was running with his coat over his arm. The police assert that, under the circumstances, Stoll's conduct did not even amount to ordinary negligence, and thus did not rise to the level of a constitutional violation.

The Supreme Court has held that the due process clause "is not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." Daniels v. Williams, --- U.S. ----, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); see also New v. City of Minneapolis, 792 F.2d 724, 725 (8th Cir.1986) (per curiam) (dictum). Thus a plaintiff must show more than mere negligence to recover for a due process violation under section 1983. See Daniels, 106 S.Ct. at 665. In contrast, an allegation that a law enforcement officer used excessive force in apprehending a suspect or effecting an arrest automatically implicates the substantive component of the due process clause in terms of fourth amendment and liberty interests. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 1699-1707, 85 L.Ed.2d 1 (1985); New, 792 F.2d at 726.

We agree with the police that the district court erred in denying the police's motion for judgment n.o.v. with regard to Stoll. In reviewing the district court's denial of a motion for judgment n.o.v., we consider the evidence in the light most favorable to the prevailing party, assuming as true all facts that the prevailing party's evidence tended to prove, and giving the prevailing party the benefit of all favorable inferences. This court will not overturn the district court's ruling on a motion for judgment n.o.v. if the evidence is susceptible of any reasonable inference sustaining the prevailing party's position. See Williams v. Ryder/P.I.E. Nationwide, Inc., 786 F.2d 854, 857 (8th Cir.1986).

We find that the evidence was insufficient to support Griffin's claim against Stoll. Stoll's conduct in transmitting an erroneous broadcast did not rise to the level of a substantive constitutional violation, because he never used force against Griffin or otherwise committed an unreasonable seizure. Compare Tennessee v. Garner, 105 S.Ct. at 1697. To recover against Stoll under section 1983 for a due process violation, Griffin was required to plead and prove that Stoll was more than negligent. See Daniels, 106 S.Ct. at 663; see also New, 792 F.2d at 725-726 (dictum). We note that Griffin's complaint alternatively alleged that Stoll intentionally transmitted a false broadcast. ¹ The record fails to disclose any evidence that Stoll was more than negligent, however. Accordingly, we reverse the district court's denial of judgment n.o.v. with regard to Stoll and dismiss.

2. Hilke.

With regard to Hilke, the police argue that he based his decision to fire at Griffin on (a) the initial report of shots fired; (b) the broadcast of the chase of an assault and robbery suspect; (c) the broadcast of the word "armed" in connection with the chase; and (d) his perception that Griffin was fleeing with his coat over his arm. The police assert that Hilke's conduct did not rise to the level of gross negligence or recklessness. They contend that Hilke followed the policy of the Board of Police Commissioners which permitted use of deadly force under the circumstances. They argue further that even if the use of deadly force was an "unreasonable seizure," in violation of the fourth amendment, there was no violation of Griffin's right to procedural due process. They contend that Missouri law provides an adequate process by which a person subjected to an unreasonable seizure may receive compensation.

Allegations of brutality by law enforcement personnel apprehending a suspect or effecting an arrest are typically analyzed in terms of fourth amendment and liberty interests. If sufficiently egregious, a deliberate use of excessive force in this context can implicate the substantive fourth amendment guarantee against unreasonable seizures, the substantive due process right to be free from abusive governmental conduct "offensive to human dignity," or both. See e.g., Tennessee v. Garner, 105 S.Ct. at 1699-1707; New, 792 F.2d at 726; Fernandez v. Leonard, 784 F.2d 1209, 1214-17 (1st Cir.1986); Patzner v. Burkett, 779 F.2d 1363, 1371 (8th Cir.1985); Davis v. Forrest, 768 F.2d 257, 258 (8th Cir.1985). Use...