Popham v. City of Kennesaw
| Decision Date | 15 July 1987 |
| Docket Number | Nos. 85-8986,86-8355,s. 85-8986 |
| Parties | Peter Norwood POPHAM, Plaintiff-Appellee, Cross-Appellant, v. CITY OF KENNESAW, a Municipal Corporation, Defendant, Robert Ruble; Dwaine Wilson; Kenneth Carter, and Mike Saine, Defendants-Appellants, Cross-Appellees. Peter Norwood POPHAM, Plaintiff-Appellant, Cross-Appellee, v. CITY OF KENNESAW, a Municipal Corporation, Robert Ruble, Dwaine Wilson, Kenneth Carter, and Mike Saine, Defendants-Appellees, Cross-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Brady D. Green, Redfern, Green & Hoffman, Atlanta, Ga., for defendant.
William J. Cobb, Eric G. Kocher, Atlanta, Ga., for plaintiff-appellee.
Peter Norwood Popham, pro se, to the cross-appeal only.
Appeals from the United States District Court for the Northern District of Georgia.
Before HILL and JOHNSON, Circuit Judges, and HENLEY *, Senior Circuit Judge.
I
These appeals arise out of the arrest of Peter Popham at a candidate's forum in Kennesaw, Georgia, in September 1982. During the midst of the campaign season for City Council, the Kennesaw Jaycees and the Kennesaw Business Association conducted an open "Meet the Candidates" forum. Popham attended that forum as a member of the public. During the forum, Darvin Purdy, the Mayor of Kennesaw, presented to the candidates for their signatures a waiver permitting the votes cast in the upcoming election to be tallied in the Council's chambers instead of at the polling place. At that point Popham obtained permission to speak from the forum moderator.
Popham had run against Purdy for mayor the previous year. After losing, Popham had unsuccessfully challenged the election in state court. One of the grounds of his complaint was that voting officials had removed the ballot boxes from the polling place prior to counting the votes. Thus, when Purdy offered the waiver to the candidates, Popham challenged the legality of removing the ballot boxes and soon began mentioning the improprieties that he felt had occurred in his race against Purdy. The moderator then ruled Popham out of order because he was discussing matters outside the forum's agenda. Despite the moderator's efforts to gavel him down, Popham continued speaking, raising his voice over the gavelling and the increasingly fractious audience.
The details of what happened next are disputed. According to Popham, Robert Ruble, the Kennesaw Chief of Police, rushed across the room and immediately placed him under arrest. When Ruble reached for him, Popham pulled his arm away. Ruble then shoved him onto the floor while Dwaine Wilson, another police officer, tackled him from behind. Once Popham was on the floor, Ruble immediately began choking him and kneeing him in the groin. At the same time, Wilson and two other police officers--Mike Saine and Kenneth Carter--descended on him. Saine yanked on his legs while Wilson and Carter bent back his wrists. Popham contends that he did not fight back. Finally he was handcuffed and taken to the police station.
The defendants recount the incident differently. They contend that Ruble asked Popham to be seated. When Popham continued to talk, Ruble warned him that, if he continued to speak, he would be arrested. Nonetheless, Popham persisted in speaking, so Ruble informed him that he was under arrest and would have to leave the room. When Ruble placed his hand on Popham's arm in order to escort him out of the room, Popham yanked his arm back and then struck Ruble in the face. Ruble then reached for Popham again, but the two lost their balance and fell onto the floor. Once on the floor, Popham placed his legs in a scissor lock around Ruble's waist and began thrashing about with his arms. Wilson and Carter rushed to place handcuffs on Popham while Saine tried to unlock Popham's legs. While flailing his arms about, Popham struck Wilson in the eye. Meanwhile, as Ruble pushed on Popham Popham was charged with disturbing the peace, resisting arrest, and battery but was acquitted on all charges. Popham then filed suit against Ruble, Wilson, Carter, Saine, and the City of Kennesaw under 42 U.S.C.A. Secs. 1983, 1985, 1986, and 1988; the First, Fourth, Fifth, Eighth, and Fourteenth Amendments; and state tort law. Popham argued that the police officers were liable to him for violating his First Amendment rights, for false arrest, for the use of excessive force in making the arrest, for inflicting cruel and unusual punishment, for battery, and for malicious prosecution. Popham argued that the City was liable to him for negligently training the police officers and for ratifying their acts against him. Ruble and Wilson asserted a counterclaim against Popham for the injuries they had received in arresting him.
to keep him on the floor, Popham began to bite one of Ruble's fingers. Ruble used his free hand to squeeze Popham's throat so that Popham would release his finger. Ruble denies ever kneeing Popham in the groin.
The district court denied the defendants' motion for summary judgment but nonetheless dismissed, with Popham's consent, the claims under Sections 1985 and 1986 and the state law claims against the City. The matter then came to trial, and at the close of Popham's case the defendants moved for a directed verdict. Popham conceded at that time that both the Eighth Amendment and the negligent training claims should be dismissed. With the exception of those two claims, the court denied the motion for directed verdict. The court denied another motion by the defendants for a directed verdict at the close of their case, and the case then went to the jury on special interrogatories. The jury found for the City on all issues and for the police officers on all issues except one. They found that the four officers had used excessive force in arresting Popham and awarded him $30,000 in compensatory damages. However, in answering the special interrogatories, the jury indicated that the police officers were entitled to immunity. Therefore, before entering judgment on the verdict, the court directed the parties to submit briefs on the issue of whether the officers were entitled to immunity for their use of excessive force. The court determined that the defendants were not entitled to immunity and accordingly entered judgment in favor of Popham.
The police officers then filed a motion for judgment n.o.v. or, in the alternative, for a new trial. The City filed a motion to alter and amend the judgment because the court had mistakenly entered judgment against it in addition to the officers. The court denied the police officers' motion but granted the City's. In a subsequent proceeding, the court awarded Popham one-third of the attorneys' fees he requested and denied the defendants' request for attorneys' fees. These appeals followed.
II
The defendants contend that the district court erred in interpreting the jury's answers to the special interrogatories. There is, without a doubt, an apparent inconsistency in the jury's answers. As indicated, in response to Special Interrogatory 3, the jury found that the defendants had used "force shockingly disproportionate to the need" and, in response to Special Interrogatory 7, awarded Popham $30,000 in compensatory damages for the deprivation of his constitutional rights. The jury also found that the defendants possessed probable cause to arrest Popham (Interrogatory 1) and that the defendants did not arrest Popham for the purpose of depriving him of his First Amendment right to speech (Interrogatory 2). No other grounds of liability for the deprivation of constitutional rights were presented to the jury. Therefore, the jury must have intended the $30,000 award to be compensation for the excessive force used in effecting the arrest. However, in response to Special Interrogatory 4, the jury found that the defendants were entitled to qualified immunity. Such a finding seems inconsistent with the award of $30,000.
Fed.R.Civ.P. 49(b) provides in part, "When the [jury's] answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial." However, the Seventh Amendment requires a court to interpret a jury's answers to special interrogatories, if at all possible, so that there is no inconsistency. Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962). In doing so, the court must consider all the circumstances, especially the issues submitted to the jury, the instructions to the jury, and any expressions of the jury extrinsic to their answers to the interrogatories. Gallick, 372 U.S. at 120-22, 83 S.Ct. at 666-68; Griffin v. Matherne, 471 F.2d 911, 915-16 (5th Cir.1973).
Assessing the jury's answers here in the light of the Seventh Amendment's command, we conclude that the district court properly entered judgment in favor of Popham, for we believe that the jury did not intend their finding that the defendants were entitled to qualified immunity to apply to the excessive force claim. First, we note that Interrogatory 4 did not ask specifically whether the defendants were entitled to immunity for the use of excessive force. Instead, it asked simply, "Were the defendant officers entitled to immunity." Therefore, the jury's finding that the defendants were entitled to immunity may have referred to the false arrest and First Amendment claims only.
The instructions to the jury bolster that interpretation. When instructing the jury on the excessive force claim, the court did not mention that the jurors had to decide whether the defendants were entitled to immunity for the use of excessive force. In contrast, the...
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