McDowell v. Rogers
| Decision Date | 27 December 1988 |
| Docket Number | No. 87-5730,87-5730 |
| Citation | 863 F.2d 1302 |
| Parties | John DeWitt McDOWELL, Plaintiff-Appellant, v. R.R. ROGERS, D.E. Ross, and R.L. Martin, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John DeWitt McDowell, Henning, Tenn., pro se.
Charles V. Holmes, Memphis, Tenn., for defendants-appellees.
Before KEITH, MARTIN and NELSON, Circuit Judges.
Plaintiff John McDowell sued three Memphis police officers in federal court under 42 U.S.C. Sec. 1983. Mr. McDowell's complaint, which he filed pro se, alleged in essence that the defendant officers had deprived him of unspecified constitutional rights by the unnecessary use of "brutal force" in effecting his arrest after an altercation between him and a private security guard.
Mr. McDowell tried his own case before a jury. After both sides had rested, the court directed a verdict for the three defendants. Mr. McDowell urges on appeal that this was error.
If the matter had not been taken away from the jury, and if the jury had believed Mr. McDowell's testimony and rejected the contradictory testimony of the defendant officers, the jury could have found that after Mr. McDowell had been handcuffed, and at a time when he was offering no resistance, one of the officers hit him with a nightstick, breaking a rib. No medical records could be found to confirm the story of a fractured rib, and the trial judge, "after listening to both sides and weighing all the proof," as he told the jury he had done, seems to have concluded that the officers' testimony was truthful and Mr. McDowell's was not.
Because this was not a bench trial, it was not up to the judge to weigh the credibility of the various witnesses. Taking the evidence in the light most favorable to the plaintiff, it seems to us that a jury could have found facts sufficient to justify the conclusion that Mr. McDowell's Fourth Amendment right to be secure in his person against "unreasonable" seizures was violated by the officer who allegedly hit Mr. McDowell with a nightstick. The judgment in favor of that officer will therefore be reversed. The conduct attributed to the other two officers did not deprive Mr. McDowell of any constitutional rights, in our opinion, and the judgment in favor of those officers will be affirmed.
The episode that led to the arrest began around five o'clock in the afternoon of May 6, 1981, when Mr. McDowell attempted to cash a stolen check at a Memphis grocery store. (Mr. McDowell was ultimately convicted on a criminal charge involving the stolen check, and was sentenced to imprisonment for life under Tennessee's habitual criminal statute.) After presenting the check, Mr. McDowell somehow got into a shoving match with the store's security guard; the guard was pushed to the floor, and Mr. McDowell ran out of the store.
Defendant Ronald R. Rogers, a Memphis police officer who happened to be in the store at the time, gave chase after telling the cashier to call the police. Although not then on duty, Officer Rogers was wearing his uniform and was carrying a pistol. Mr. McDowell knew that he was being chased by a policeman, and after jumping over a wooden fence and running into the courtyard of a nearby apartment complex, he tried to hide behind a Coke machine. Officer Rogers reached around the machine and grabbed Mr. McDowell ("almost chok[ing] the wind out of me," according to the latter's testimony), whereupon the officer, whose pistol was drawn, told Mr. McDowell he was under arrest.
Officer Rogers then holstered his weapon and handcuffed Mr. McDowell's hands together behind his back. The security guard came running up at this juncture, lost his footing on some moist ground, according to Officer Rogers, and grabbed onto Mr. McDowell. McDowell's version was that the guard "was mad about what had happened inside the store, and he just started hitting and beating me." Mr. McDowell did not claim to have been hit by Officer Rogers, in any event.
With peace restored, the three men started walking back to the store. Before they got there, they came upon a squad car that was responding to the call from the cashier. Mr. McDowell was driven back to the store in the squad car, and Officer Rogers continued walking.
Defendant R.L. Martin, the officer who was driving the squad car, parked the vehicle directly in front of the store. Officer Martin then went inside to interview witnesses, according to his testimony, leaving Mr. McDowell with his partner, the third defendant in this case, Officer Don Ross.
When Officer Rogers got to the parked squad car, Mr. McDowell was asked to get out of the car so that Officer Rogers could retrieve his handcuffs and be on his way. It was Officer Ross who changed the handcuffs.
Officer Ross--who had been on the force for only one month--testified that he accomplished the change of handcuffs by having Mr. McDowell bend forward over the trunk of the squad car so that the keyholes of the handcuffs could be reached conveniently. The officer put one of his legs between Mr. McDowell's, in accordance with standard procedure, opened the cuffs one at a time, and replaced them with his own cuffs. Mr. McDowell was making no trouble at this point, and Officer Ross' testimony--which Officer Rogers corroborated--was that Mr. McDowell then got back in the squad car without any untoward incident.
The fact that a number of people were going in and out of the store suggests that this would have been an odd time and place for Officer Ross to engage in misconduct even if there had been any motive for him to do so.
Mr. McDowell testified, nonetheless, that after the new handcuffs were applied, and before he got back in the squad car, Officer Ross hit him twice with a nightstick--once above the knee and once in the side. ) Officer Ross, on the other hand, testified that he had not even been issued a nightstick in May of 1981, and he said he never struck Mr. McDowell with anything. Officer Rogers corroborated this:
"Q. Did you see Officer Ross put him back in the car?
A. Yes, sir, I was with him.
Q. Did you at any time see Officer Ross strike the prisoner, Mr. McDowell?
A. No, sir, it was no need to.
Q. And after you got your handcuffs back, then that was the end of your involvement, is that correct?
A. Other than exchanging information, yes, sir.
Q. When you left Mr. McDowell, did you observe any visible injuries to him?
A. No, sir, there were none at the time."
After interviewing witnesses inside the store, Officer Martin made a call to a police lieutenant to arrange for authorization to place a felony charge against Mr. McDowell. On their way to the city jail with Mr. McDowell, Officers Martin and Ross stopped at a prearranged meeting place (the parking lot of a liquor store) to get the lieutenant's initials on the arrest ticket. Mr. McDowell testified that there were other officers there, and he said "they all gathered around the car and started ... using racial slurs, such as 'nigger', and [saying] we ought to kill you." Officers Martin and Ross both testified that the lieutenant was the only other officer at the liquor store, and they both denied that any verbal abuse occurred.
Mr. McDowell testified that before he got to the jail he asked Officers Martin and Ross to take him to the hospital "due to the fact that I was bleeding from my mouth and nose...." Mr. McDowell claimed that he was denied medical attention until about a day and a half later. Officers Martin and Ross both insisted that Mr. McDowell made no request for medical treatment. Officer Martin, for example, testified thus:
"Q. Did he ever complain to you about any physical injuries he had suffered or wanting to go to the hospital?
A. No.
Q. Did you notice any physical injuries, visible physical injuries to him?
A. No, I did not. Had I, I would have immediately transported him to the, at that time was the John Gaston Hospital, it is now the Regional Med, which is also standard policy and procedure any time there is visible wounds, blood or complaint of injury, we automatically transport to the Regional Medical Center to the prison facility there."
Mr. McDowell testified that on May 7 or 8, 1981, a day or two after his arrest, he was taken from the jail to the Regional Medical Center because of an "illness:"
The records custodian at the Regional Medical Center testified that no medical records or x-rays relating to Mr. McDowell could be found for either May 7th or May 8th. The trial judge asked the witness to return to the hospital to see if she could find anything from May 9th or 10th of 1981, but she subsequently reported that she could find nothing for those days, or for May 11 or 12 either.
Mr. McDowell's sister testified that she visited her bro...
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...in the Sixth Circuit that the gratuitous use of force on a suspect who has already been subdued is unconstitutional, McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir.1988), "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourt......
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...cases holding that "a totally gratuitous blow with a policeman's nightstick may cross the constitutional line." McDowell v. Rogers , 863 F.2d 1302, 1307 (6th Cir. 1988) ; see, e.g. , Baker , 471 F.3d at 609 ; Phelps v. Coy , 286 F.3d 295, 301–02 (6th Cir. 2002). And she cites cases finding ......
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