Lester v. City of Chicago

• Decision Date: 17 September 1987
• Docket Number: No. 86-2008,86-2008
• Citation: 830 F.2d 706
• Parties: Betty LESTER, Plaintiff-Appellant, v. CITY OF CHICAGO, Officer Daniel Leahy, Officer Ernest Cain, and Sergeant John McNulty, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 706

830 F.2d 706

56 USLW 2203

Betty LESTER, Plaintiff-Appellant, v. CITY OF CHICAGO, Officer Daniel Leahy, Officer Ernest Cain and Sergeant John McNulty, Defendants-Appellees.

No. 86-2008.

United States Court of Appeals Seventh Circuit.

Argued Jan. 27, 1987.

Decided Sept. 17, 1987.

Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., Chicago, Ill., for plaintiff-appellant.

Joseph A. Moore, Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before POSNER, FLAUM and MANION, Circuit Judges.

MANION, Circuit Judge.

Betty Lester sued Daniel Leahy and Ernest Cain, two Chicago police officers, under 42 U.S.C. Sec. 1983. ¹ Mrs. Lester's complaint arose from her arrest for disorderly conduct at a Chicago police station in May, 1979. Mrs. Lester alleged that Leahy and Cain arrested her without probable cause and that Leahy and Cain used excessive force in arresting her. A jury found for Leahy and Cain on both the no probable cause and excessive force claims.

On appeal, Mrs. Lester contends that the trial court improperly instructed the jury on both her excessive force and no probable cause to arrest claims. Mrs. Lester also contends that insufficient evidence existed for the jury to find that Leahy and Cain had probable cause to arrest her. We affirm the jury's verdict on the no probable cause to arrest claim. However, we reverse and remand for a new trial on Mrs. Lester's excessive force claim.

I.

In the late afternoon on May 25, 1979, Mrs. Lester received a telephone call from her father, Alfred Harmon. Mr. Harmon told Mrs. Lester he had been arrested and asked her to come to the Sixth District police station in Chicago to get him out. Mrs. Lester drove to the Sixth District station, arriving sometime between 5:00 and 6:00 p.m. At trial, the evidence revealed conflicting stories about what happened after Mrs. Lester arrived at the Sixth District station.

Mrs. Lester claims the facts were as follows. When she arrived at the Sixth District station one of the three officers at the front desk in the lobby, Sergeant Collins, told her to wait her turn to talk to the officers. Mrs. Lester waited, and then politely inquired about her father. Another officer at the desk, Sergeant Graffis, informed Mrs. Lester that the police did have her father in custody. Mrs. Lester inquired about the charge, and Sergeant Graffis informed her to ask the judge who signed the arrest warrant. The officers at the desk began to look at each other and smile.

According to Mrs. Lester, Sergeant Graffis' response to her inquiry about the charges against her father, and all the officers' behavior "shocked" and "amazed" her. Mrs. Lester, feeling the officers would not have treated her the same way if she were not black, told the officers, "You are white, prejudiced police officers." The officers stopped smiling, and someone (either Leahy or Cain) behind Mrs. Lester said, "Lady, if you don't shut up, we will arrest you." Mrs. Lester again began to speak to the officers at the front desk. Leahy and Cain grabbed Mrs. Lester and told her she was under arrest.

Mrs. Lester testified that after grabbing her, Leahy and Cain dragged her along the floor to the tactical office in the back of the station. Upon arriving at the tactical office, Leahy balled up his fist and drew back his arm as if to hit Mrs. Lester. Mrs. Lester did not recall if Leahy actually hit her. However, Mrs. Lester did state that Leahy kneed her in the back and handcuffed her tightly. Cain then obtained another pair of handcuffs. To secure Mrs. Lester, he fastened one end of those handcuffs to the handcuffs Leahy had already placed on Mrs. Lester, and fastened the other end of the handcuffs to a radiator in the tactical office.

Leahy's and Cain's evidence revealed a significantly different course of events. Leahy and Cain testified that they saw and heard Mrs. Lester shouting at the officers at the front desk, disrupting the activities at the police station. Leahy saw Mrs. Lester push other people out of her way to get to the front desk. ² Other civilians in the area shied away from and wanted nothing to do with Mrs. Lester and her antics. According to Cain, "It didn't seem to me that anything was getting done other than Mrs. Lester hollering and screaming at the desk men." After Mrs. Lester ignored repeated warnings by various officers to calm down or face arrest, Leahy and Cain arrested her.

After Leahy and Cain told Mrs. Lester she was under arrest, she ran from them and grabbed onto a pole near the front desk. Leahy, Cain, and other officers pried her hands from the pole and Leahy and Cain walked her toward a door leading to a hallway that led to the back of the station. Mrs. Lester broke from Leahy and Cain and grabbed hold of the doorjamb. Leahy and Cain freed Mrs. Lester from the doorjamb and continued walking her down the hallway toward the tactical office. Mrs. Lester refused to walk under her own power down the hallway, despite Leahy's and Cain's requests and their efforts to support her.

After arriving at the tactical office, Cain handcuffed Mrs. Lester, who was struggling the entire time. After Cain handcuffed Mrs. Lester, she began jumping around and kicking chairs and tables. Because he feared Mrs. Lester might injure herself if not further restrained, Cain obtained another pair of handcuffs and used them to secure Mrs. Lester to the radiator. Both Leahy and Cain denied ever hitting, kicking, or kneeing Mrs. Lester. Leahy and Cain also denied drawing back their fists as if to hit Mrs. Lester.

Mrs. Lester claimed that she suffered bruises to the back of her leg when Leahy and Cain dragged her down the hallway. She also claimed that the tight handcuffs scratched and bruised her wrists. Mrs. Lester stated that she was sore for two weeks after her arrest.

II.

A.

Mrs. Lester contends the district court improperly instructed the jury on her excessive force claim. The district court gave three instructions on excessive force:

A person can be subject to an unlawful seizure under the Fourth Amendment if he or she is subjected to "unreasonable force," as that phrase is defined in these instructions, while being arrested by a law enforcement officer, even if such arrest has been based upon "probable cause." (Transcript 334.)

A police officer has the right to use such force as is reasonably necessary under the circumstances to effect an arrest. Whether or not the force used in making an arrest was "unreasonable" is to be determined in the light of all the surrounding circumstances, on the basis of that degree of force a reasonable and prudent person would have applied in effecting the arrest under the circumstances of this case. (Transcript 337-38.)

Before you may determine that any force used by Officers Cain and Leahy was "excessive" as that term is used in these instructions in relation to law enforcement, you must find that: One, there were severe injuries; two, that the force used was grossly disproportionate to the need for force under the circumstances; and three, that such gross disproportion was the consequence of something other than mere carelessness or unwise excess of zeal so that it amounted to an abuse of official power that "shocks the conscience." (Transcript 337.)

Mrs. Lester challenges only the third quoted instruction. The district court took the language in that instruction almost verbatim from Gumz v. Morrissette, 772 F.2d 1395, 1400 (7th Cir.1985), cert. denied, 475 U.S. 1123, 106 S.Ct. 1644, 90 L.Ed.2d 189 (1986). (We will refer to this instruction as the "Gumz instruction.") In Gumz, the majority ³ employed a Fourteenth Amendment substantive due process analysis to analyze an excessive force in arrest claim. ⁴ The Gumz majority held that a state officer's use of force is unconstitutional if it "1) caused severe injuries, 2) was grossly disproportionate to the need for action under the circumstances, and 3) was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience." Id.; see also Bailey v. Andrews, 811 F.2d 366, 373 (7th Cir.1987).

Mrs. Lester contends that she based her excessive force claim solely on a Fourth Amendment theory. Generally, under the Fourth Amendment, an officer's use of force is unconstitutional if the force used is unreasonable under the circumstances. ⁵ See Bell v. Milwaukee, 746 F.2d 1205, 1278-79 & n. 88 (7th Cir.1984). According to Mrs. Lester, the Gumz majority explicitly distinguished between excessive force in arrest claims brought under a Fourth Amendment theory and those brought under a Fourteenth Amendment substantive due process theory. Since Gumz addressed only a claim brought under a Fourteenth Amendment substantive due process theory, Mrs. Lester reasons the Gumz criteria apply only to Fourteenth Amendment excessive force claims, not Fourth Amendment excessive force claims. Mrs. Lester contends that since she brought no Fourteenth Amendment excessive force claim, the district court erred in giving the Gumz instruction. See Feemster v. Dehntjer, 661 F.2d 87 (8th Cir.1981) (holding that it was error for trial court to instruct the jury on an issue relating to a theory of liability plaintiff abandoned during trial).

We agree with Mrs. Lester that the Gumz majority distinguished between Fourth and Fourteenth Amendment excessive force in arrest claims and that the Gumz majority addressed only what the plaintiff had labeled a Fourteenth Amendment claim. Although the Gumz majority recognized that Fourth Amendment analysis of excessive force in arrest claims was proper, Gumz, 772 F.2d at 1399-1400 n. 3, the plaintiff in Gumz couched his excessive force claim solely in Fourteenth Amendment terms on appeal. Therefore, the Gumz majority held that no Fourth Amendment claim was before it, and analyzed the plaintiff's excessive force claim only under a Fourteenth Amendment substantive due process standard. Id.

Althoug...