Dixon v. City of Lawton, Okl.

Decision Date08 March 1990
Docket NumberNo. 86-2447,86-2447
Parties30 Fed. R. Evid. Serv. 82 Joyce DIXON, Individually and as Administratrix of the Estate of Wesley Dixon, deceased, Plaintiff-Appellant, v. The CITY OF LAWTON, OKLAHOMA; Officer Dan Borders; Officer Sam Helton and Lieutenant Bill Adamson, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Michael A. Williams (Dario Aguirre with him on the brief), Sherman & Howard, Denver, Colo., for plaintiff-appellant.

Richard L. Denney (Lydia JoAnn Barrett with him on the brief), Denney Law Firm, Norman, Okl., for defendants-appellees.

Before TACHA, GARTH * and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff-appellant administratrix brought this civil rights action pursuant to 42 U.S.C. Secs. 1983 and 1985(3) against defendants-appellees City of Lawton and three police officers seeking redress for the shooting death of her son, Wesley Raynard Dixon (Dixon). After a six-day trial, the jury on specific interrogatories found in favor of each individual defendant and the city on the Sec. 1983 claim, and in favor of the individual defendants on the Sec. 1985(3) claim. The district court entered judgment on the jury verdict in favor of all defendants. Plaintiff now appeals arguing that 1) the district court's jury instruction concerning Sec. 1985(3) was erroneous because it instructed that Sec. 1983 liability was a condition precedent to liability under Sec. 1985(3), and 2) the district court's admission of psychotherapist-patient communications was erroneous because of evolving federal common law privilege. While we do not agree with the second point, we agree with the first point. Nevertheless, we affirm the judgment because our review of the record convinces us that plaintiff's theory of the case was encompassed completely under Sec. 1983. Accordingly, the error was harmless.

This tragic Sunday morning incident began after plaintiff's decedent Wesley Dixon spotted a neighbor and friend, Rhonda Perry, in a parked car with her boyfriend, Rodney Harris (Harris). According to one account, Dixon slapped Rhonda Perry while she was seated in the car because Dixon suspected her of cheating on his best friend, Bobby Dale. The conflict escalated. Harris jumped out the car and a fistfight broke out between Harris and Dixon. A neighborhood crowd gathered and several people separated Harris and Dixon for a short time. The fight resumed with Harris as the aggressor, however, and the two were separated again.

After the fight was broken up the second time, a close friend and neighbor of the Dixon family, Dorothy Jackson, asked Dixon what was wrong. He indicated that he was all right. She then asked him about his belt buckle, which displayed the name "Dick." Without responding verbally to her question, Dixon undressed while outside. Dorothy Jackson's son-in-law, Virgil Maddox, then got a blanket, covered the naked Dixon and tried to calm and restrain him. Dixon was moved to the Maddox porch (across the street from the Dixon home) where Dixon twice asked his nephew, Stacey Sutton, to bring him a gun. Sutton refused. Dixon then was taken home by Maddox and Broderick Jackson, son of Dorothy Jackson.

Once home, Dixon talked with Maddox and Broderick Jackson. The two no longer restrained him. Broderick Jackson testified:

You know he's (Dixon) talking about God, said God is tired of all these people, you know, sleeping with ... other men's wives, and things like that, God is tired of all the sin. He said ... God sent him on a mission--God sent him on a mission of some sort.

Rec. vol. III at 469. Dixon then became agitated, went to the back of his home and returned with a gun. Maddox wrestled the gun away from Dixon and gave it to Stacey Sutton, who put it in a coat closet.

By this time, the Lawton police department had been called by neighbors. On the report that there was a naked man with a gun, defendant-appellee Officer Borders (Borders) was dispatched to the scene and arrived first. Defendants-appellees Lieutenant Adamson (Adamson) and Officer Helton arrived thereafter. An unidentified neighbor ran out of the Dixon home yelling: "He's got a gun." On this information, an understanding was reached between Officer Borders and Broderick Jackson, who had come outside, whereby Jackson would attempt to persuade Dixon to come out of his home without the gun. While the officers waited outside, Broderick Jackson went inside the Dixon home. Jackson testified that Dixon initially indicated that he would comply with the police request, but that he needed some clothes from his coat closet. Dixon proceeded to the closet and dived for his gun. Rec. vol. III at 472. Maddox then attempted to take the gun away from Dixon a second time.

By this time, the officers were at the front door of the home. Betty Sutton Womack, Dixon's sister, declined to let the officers inside. Adamson and Borders heard a physical struggle in progress and pushed Betty Sutton Womack aside. They saw Maddox attempting to restrain Dixon, who had an Armalite AR-18 semi-automatic gas operated rifle 1 with an ammunition clip in it. The ejector port was open, which indicated that the bolt of the rifle had been cocked. Adamson grabbed the barrel end of the rifle and Borders the stock end. Although Dixon was in a crouched position with Maddox attempting to restrain him, Dixon would not let go of the rifle after being told to do so by Adamson. Unable to obtain control of the rifle and having lost his night stick in the struggle, Borders struck Dixon twice on the side of his head with his .357 magnum service revolver while Lieutentant Adamson tried to control the barrel end of Dixon's rifle. At this point, Maddox left. According to the officers, Dixon fired two shots which hit the floor. Borders testified that he thought Adamson had been shot and that he would be next. With his left hand, Borders pushed Dixon to the right and fired five times. In the process, Borders shot himself in the left thumb. Again, according to the officers, Dixon continued to fire the rifle.

Dixon probably lost consciousness within minutes and may have lived thirty minutes before expiring. Dixon's autopsy revealed the presence in his bodily fluids of phencyclidine, commonly known as PCP, a potent hallucinogen with pronounced behavioral toxicity. Rec. vol. V at 901. This drug has an unpredictable dose-response relationship and produces bizarre and frequently violent behavior in the user. Id. at 901-04. Seven expended cartridges, six of which were positively identified as being fired from Dixon's AR-18 rifle, were recovered, although defendants' firearms expert could not state with certainty when the cartridges were fired and plaintiff's witnesses testified that they heard only five or six shots fired. Some traces of nitrite and lead were found on the carpet where the incident occurred, and defendants' firearm expert testified that this was consistent with the firing of a .223 caliber cartridge bullet (used in Dixon's AR-18 rifle) because the bullet frequently disintegrates upon impact. On direct examination, defendants' firearms expert did not think that the nitrite and lead traces were from any of the rounds fired from Borders' .357 service revolver because the floor would have been a secondary target, but on cross examination the expert admitted that he could not say with certainty from which firearm came the traces.

The trial focused on fourth and fourteenth amendment claims. Plaintiff claimed that Dixon was deprived of life and liberty without due process of law by the defendants, specifically that the individual defendants accomplished an unlawful seizure of Dixon marked by excessive force. Plaintiff also claimed that the individual defendants conspired to cover up this excessive use of force by giving false testimony and tampering with evidence at the scene. According to the plaintiff, the City of Lawton had a custom or policy of excessive force, brought about in part by a failure to screen, train and supervise its officers. Defendants' disputed these claims and contended that throughout the entire incident they were unable to obtain control of Dixon's AR-18 rifle and that deadly force was necessary and appropriate in order to preserve lives endangered by Dixon.

Concerning Sec. 1985(3), the trial court instructed in pertinent part that: "You need consider the question of defendants' liability under the plaintiff's additional claim brought under Section 1985 only if you first find that a defendant is liable under Section 1983." Rec. vol. VII at 1403. Plaintiff's trial counsel properly objected:

We object to the instruction that indicated you could only consider the 1985 action if a finding as to a 1983 violation--unless a finding to a 1983 violation was made out. We don't believe that to be the law. We believe the law is that they are separate and distinct causes of action, neither are they dependent on the other.

Id. at 1424-25. On appeal, plaintiff claims that the instruction confused the jury and precluded jury consideration of rights protected by the thirteenth amendment.

We review a challenged jury instruction, not in isolation, but as part of the entire charge and in the context of the entire trial. United States v. Park, 421 U.S. 658, 674-75, 95 S.Ct. 1903, 1912-13, 44 L.Ed.2d 489 (1975); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). We must be satisfied that the jury instructions as a whole were "not misleading and contained an adequate statement of the law to guide the jury's determination." Park, 421 U.S. at 675, 95 S.Ct. at 1913.

As an initial matter, we note that our review of the trial court's instructions to the jury has not been enhanced by the state of this record. First, the district court docket sheet indicates that the hard copy of the district court's instructions, furnished to the jury for guidance, rec. vol. VII at 1422-23, did not remain filed and entered...

To continue reading

Request your trial
266 cases
  • Kan. Motorcycle Works USA, LLC v. McCloud
    • United States
    • U.S. District Court — District of Kansas
    • October 27, 2021
    ...law on Kansas Motorcycle's conspiracy claim. There is no freestanding conspiracy claim under Section 1983. See Dixon v. City of Lawton , 898 F.2d 1443, 1449 n.6 (10th Cir. 1990). Instead, conspiracy in the context of Section 1983 is a means by which multiple actors can be liable for the sam......
  • Lowden v. William M. Mercer, Inc., Civ. A. No. 94-11351-RCL.
    • United States
    • U.S. District Court — District of Massachusetts
    • October 17, 1995
    ...and gave Congress the ability to determine the badges and incidents of slavery and to legislate against them. Dixon v. City of Lawton, Oklahoma, 898 F.2d 1443, 1448 (10th Cir.1990). Thus, together with the Thirteenth Amendment, section 1985(3) creates a remedy prescribing racially motivated......
  • Bonnette v. Dick
    • United States
    • U.S. District Court — Eastern District of California
    • June 22, 2020
    ...Dyess ex rel. Dyess v. Tehachapi Unified Sch. Dist., 2010 WL 3154013, at *8 (E.D. Cal. Aug. 6, 2010) (citing Dixon v. City of Lawton, 898 F.2d 1443, 1449, n. 6 (10th Cir. 1990); Klingele v. Eikenberry, 849 F.2d 409, 413 (9th Cir. 1988); Cohen v. Norris, 300 F.2d 24, 27-28 (9th Cir. 1962); H......
  • Bledsoe v. Carreno
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 15, 2022
    ...conspiracy to deprive a plaintiff of a constitutional or federally protected right under color of state law." Dixon v. City of Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990). "Provided that there is an underlying constitutional deprivation, the conspiracy claim allows for imputed liabilit......
  • Request a trial to view additional results
2 books & journal articles
  • Qualified Immunity in Police Use of Force Claims
    • United States
    • Colorado Bar Association Colorado Lawyer No. 22-5, May 1993
    • Invalid date
    ...exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 3. Dixon v. City of Lawton, 898 F.2d 1443, 1448 (10th Cir. 1990). 4. 490 U.S. 386, 394-95 (1989). 5. Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir. 1992). 6. Dixon v. Richer, 922 F.2......
  • Rule 501: Litigation and Implied Waiver of the Psychotherapist-patient Privilege
    • United States
    • Colorado Bar Association Colorado Lawyer No. 31-9, September 2002
    • Invalid date
    ...303, 305 (D.Colo. 1998). 11. Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996). 12. Fox, supra, note 10 at 306, citing Dixon v. City of Lawton, 898 F.2d 1443, 1450-1451 (10th Cir. 13. Fox, supra, note 10 at 306; Dixon, supra, note 12 at 1450. 14. Fox, supra, note 10 at 304. 15. Id. at 306-07. 16. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT