Hagge v. Bauer

• Decision Date: 17 August 1987
• Docket Number: Nos. 86-1469,86-2974,s. 86-1469
• Citation: 827 F.2d 101
• Parties: Margaret HAGGE, Plaintiff-Appellee, v. William BAUER, an individual; City of Oak Creek, a Wisconsin Municipal Corporation; the Home Insurance Company of Wisconsin, a corporation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 101

827 F.2d 101

Margaret HAGGE, Plaintiff-Appellee, v. William BAUER, an individual; City of Oak Creek, a

Wisconsin Municipal Corporation; the Home

Insurance Company of Wisconsin, a

corporation, Defendants-Appellants.

Nos. 86-1469, 86-2974.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 21, 1986.

Decided Aug. 17, 1987.

Ronald L. Piette, Piette, Knoll, Nelson S.C., Milwaukee, Wis., for defendants-appellants.

Thomas J. Crawford, Robert C. Crawford, Milwaukee, Wis., for plaintiff-appellee.

Before POSNER and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Margaret Hagge claimed that Officer Bauer kicked and stomped her leg. Bauer was one of five City of Oak Creek police officers responding to an early-morning call for help at the scene of domestic violence where Mrs. Hagge was the victim. As the officers attempted to restore order at the Hagge residence, neither Mr. nor Mrs. Hagge would cooperate peacefully. The officers arrested both Mr. and Mrs. Hagge, and as the officers led Mrs. Hagge to the patrol cars she suffered the injuries in issue. Mrs. Hagee's suit under 42 U.S.C. Sec. 1983 alleged police brutality, and the trial court ruled in her favor. Bauer, the City of Oak Creek and its insurer appeal from a judgment awarding Hagge $81,451.78 in compensatory damages, $25,000 in punitive damages, and attorney fees. We affirm the judgment of the district court. We also hold, without commenting further, that the district court did not abuse its discretion in denying Bauer's trial motions to dismiss for insufficiency of the evidence.

I

After an evening of drinking with co-workers, Kenneth Hagge arrived at the Hagge residence in the early morning of September 22, 1983. He was drunk and belligerent. Upon kicking the entry door from its hinges, Mr. Hagge found his wife, Margaret, asleep in bed with the two Hagge children, Tina and Ken, Jr. Mr. Hagge threw a box at his wife, slapped her repeatedly, chased her to the bathroom and banged the door against her forehead as he barged through the bathroom. Ken, Jr., meanwhile, had succeeded in telephoning the Oak Creek police.

Officers Liegler, Schmidt, Hermann and Bauer arrived on the scene to inquire about Mrs. Hagge's safety. Upon answering the rap on the door, Mr. Hagge demanded that the officers get off his property. Sensing the gentlemen had reached an impasse in their communication, perhaps, Mr. Hagge slammed Officer Liegler in the chest, knocking him backwards into Officer Bauer. Bauer did Liegler the favor of pushing him back in the direction of the muscular Hagge. While Officers Schmidt and Hermann circled the house in an effort to reach Mrs. Hagge, Bauer, Liegler and Mr. Hagge wrestled on the stairs leading to the second floor. The four officers eventually removed Mr. Hagge from the house to resume the struggle in the yard. Mrs. Hagge then interfered with the officers' efforts; she either pushed or punched Bauer, so incensing him that he intended to place her under arrest. But before he could do so, all five officers (by then Officer Artka had arrived) were engaged in subduing and handcuffing Mr. Hagge.

Officer Bauer returned to the house to arrest Mrs. Hagge. Bauer led her out of the house, and, as he held the handcuffed Mrs. Hagge by the arm, she fell to the ground and suffered severe leg injuries. Specifically, Mrs. Hagge suffered spiral comminuted fractures of the left distal tibia and proximal fibula. At trial, Mrs. Hagge argued that Bauer kicked her in the leg, causing her to fall clumsily to the ground.

Officer Bauer testified that he was escorting Mrs. Hagge by her right arm, and, as Officer Schmidt approached to grab her left arm, she kicked up at Schmidt's face and lost her balance and fell. Schmidt testified that Mrs. Hagge kicked up at his face and he turned to avoid the kick. Liegler and Artka testified to the same. Liegler was positioned in the doorway, and Artka observed from the shoulders of Mr. Hagge, whom the officers had finally pinned to the ground. Hermann, however, could not see the incident because he was positioned on Mr. Hagge's legs and facing the other direction.

Bauer testified that, after Mrs. Hagge fell, she then kicked up at him and landed a blow to his groin area. In response, according to his own testimony, Bauer gave Mrs. Hagge a "snap-kick" in the buttocks and told her to "knock that shit off." Mrs. Hagge testified, on the contrary, that Bauer stomped on her ankle as she lay helplessly on the ground.

The trial court, Judge Reynolds presiding, resolved the conflicting testimony rather neatly in its Findings of Fact and Conclusions of Law by declaring that "Bauer did not tell the truth about what happened to Margaret, and the four other police observers distorted their testimony through selective memory in order to protect Bauer." Findings at 6. According to Judge Reynolds, "Margaret's legs were kicked into the air by William Bauer, and her legs reached a height of approximately 5'5"'." Id. She fell to the ground "on top of her legs in an Indian-style fashion." Id. She sat upright momentarily, slumped to her left side and "Bauer stomped on her left ankle with his work boot. (He testified that he kicked her in the buttocks.)" Id. The defendants' expert witness, Dr. Pojunas, explained that a torquing motion probably caused Hagge's injuries. According to Judge Reynolds,

the break occurred as Margaret fell to the ground.... Bauer was both the actual and legal cause of the fracture. Bauer induced the torquing movement to Margaret's left leg by kicking her two inches below her left knee as she stood outside the back door of her home with both of her wrists handcuffed behind her back. She did not fall after a failed attempt to kick officer Schmidt.

Id.

II

The district court issued nineteen pages of Findings and Conclusions to communicate the decision below. Although many of the facts are undisputed, the defendants-appellants (referred to as "Bauer") contend that certain findings of the court are clearly erroneous and should be set aside. Bauer argues that, given the implausibility of Mrs. Hagge's testimony, it was clearly erroneous for the court to conclude that a kick from Bauer caused Hagge's injuries. Bauer points to the numerous false allegations made by Mrs. Hagge; he suggests this renders her entire testimony incredible. And Bauer considers this crucial since Margaret's own testimony formed the sole basis for the court's conclusion that Bauer injured Mrs. Hagge.

Bauer contends Hagge's testimony was inconsistent and implausible. Bauer suggests it is significant that the district court invariably based its findings on the testimony of the police officers whenever there was a conflict between the testimony of the officers and of Hagge, with one exception--the court found that Bauer kicked Hagge.

Bauer cites the following inconsistencies as critical to Hagge's credibility. Hagge said she was handcuffed outside, but the court found that the officers handcuffed her in the kitchen. Hagge said there was nobody in the yard to witness the kick, but the court credited the observations of the officers to find that her legs flew into the air. Hagge testified that she fell to the ground after getting kicked, but the court found that her legs flew into the air. Bauer also argues that Mrs. Hagge changed her story of how the fractures occurred. Apparently, she reported to hospital personnel that she suffered the injuries when one of the police officers stomped on her leg.

Bauer also criticizes Hagge's description of other events of the night of the injuries. Hagge testified, for example, that only Bauer approached her after she had interfered with the officers' apprehension of Mr. Hagge, but the court found that Liegler was standing next to Bauer. Similarly, the court found that Bauer, Liegler and Schmidt were all present in the kitchen when Hagge was arrested, although Hagge claimed that Bauer never made it to the kitchen. Hagge also claimed that, while she was in the stairway, Bauer smashed her head against the wall three times. The court made no such finding. Bauer concludes that Hagge's testimony is against the great weight of the testimony of all the other witnesses and against the extrinsic objective evidence of the nature of her injuries. Dr. Pojunas explained that the injuries were caused by a twisting motion rather than a direct blow to the leg. Bauer insists Hagge's story of how Bauer delivered the kick is facially implausible.

This case was tried to the court. Under Fed.R.Civ.P. 52(a), in a trial without a jury, "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." In a recent statement on the meaning of "clearly erroneous" the Supreme Court has said:

If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). Bauer has launched an extensive attack on Mrs. Hagge's credibility. The Supreme Court has warned that such an attack rarely succeeds:

When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. See Wainwright v. Witt, 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841] (1985). This is not to suggest...