899 F.2d 451 (6th Cir. 1990), 88-6162, Lewis v. City of Irvine, Ky.

Docket Nº:88-6162.
Citation:899 F.2d 451
Party Name:Patricia Ann LEWIS, Administratrix of the Estate of Donald Lohris Lewis; and Timothy Roy Lewis, Plaintiffs-Appellants, v. CITY OF IRVINE, KENTUCKY; and Mike Miller, Defendants-Appellees.
Case Date:March 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 451

899 F.2d 451 (6th Cir. 1990)

Patricia Ann LEWIS, Administratrix of the Estate of Donald

Lohris Lewis; and Timothy Roy Lewis, Plaintiffs-Appellants,


CITY OF IRVINE, KENTUCKY; and Mike Miller, Defendants-Appellees.

No. 88-6162.

United States Court of Appeals, Sixth Circuit

March 26, 1990

Argued Jan. 26, 1990.

Page 452

Daniel T. Taylor, III (argued), Foster V. Jones, Jr., Louisville, Ky., for plaintiffs-appellants.

Charles R. Coy, Coy, Gilbert & Gilbert, Richmond, Ky., Donald P. Moloney, II, Ogden, Sturgill & Welch, Lexington, Ky., Linda M. Hopgood (argued), Clark, Ward & Hopgood, Lexington, Ky., for defendants-appellees.

Page 453

Before WELLFORD and GUY, Circuit Judges; and HULL, Chief District Judge. [*]

RALPH B. GUY, Circuit Judge.

In this 42 U.S.C. Sec. 1983 action arising from the death of Donald Lewis, plaintiffs Patricia Ann Lewis (as administratrix of Donald Lewis's estate) and Timothy Lewis appeal from several rulings rendered by a United States magistrate. 1 First, the plaintiffs seek review of the magistrate's order granting a directed verdict in favor of the City of Irvine, Kentucky (City). Second, the plaintiffs contest the magistrate's denial of their motions for judgment notwithstanding the verdict in favor of defendant Mike Miller and for a new trial against Miller. We affirm the ruling granting a directed verdict for the City, but we reverse the denial of the motion for a new trial against Miller and remand the case for retrial under the fourth amendment excessive force standard set forth in Graham v. Connor, 490 U.S. ----, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).


In 1984, Donald Lewis leased a building in Irvine, Kentucky, which he converted into a residence for his family and a public game room including pool tables. After he opened the game room for business in downtown Irvine, local residents voiced complaints about the unruly behavior of some game room patrons. To remedy the situation, the City of Irvine adopted an ordinance "regulating loitering [and] profane and loud talking on the sidewalks and streets in front of business places within the corporate limits of the City of Irvine, Kentucky." The ordinance provided no definition for "loitering." 2

Soon after adopting the ordinance, the City of Irvine hired Mike Miller to serve as a City police officer. The confrontation underlying this suit occurred on October 7, 1984, less than three weeks after Miller had been on the job. At approximately noon on that date, Donald Lewis was outside the family's game room sweeping the sidewalk and watching people leave the

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church services that had just ended. Officer Miller, who was on patrol in his police car at the time, arrived at the game room and instructed Donald Lewis and others on the sidewalk to stop loitering. Donald Lewis objected to Miller's instruction and directed Miller to contact the City's mayor to resolve the dispute regarding whether Lewis was, in fact, violating the loitering ordinance.

Miller returned to his police car to summon the mayor over his radio, and then resumed his patrol route until he was informed that the mayor was on his way to the game room. A few minutes after leaving, Miller returned to the sidewalk area in front of the game room and stepped out of his car. The sidewalk was clogged with people, including Donald Lewis and his son Tim who stood with his hands clenched in the pockets of his pants. Tim Lewis walked slowly toward Officer Miller, who in turn grabbed or hit Tim. Tim Lewis then swung at Miller, prompting Miller to draw his gun from its holster either to keep it from Tim's reach or to threaten Tim. Donald Lewis responded by grabbing for Officer Miller's arm. A struggle ensued in which Miller's gun discharged a single bullet from close range into the back of Donald Lewis's neck. Donald Lewis died instantly from the gunshot.

Patricia Lewis was appointed as administratrix of her husband's estate. She and her son Tim then filed this case against the City of Irvine and Officer Miller. Their one-count complaint alleged violations of the first, fourth, fifth, eighth, and fourteenth amendments. After extensive discovery and motion practice, the case proceeded to trial in 1988. The magistrate presiding at the trial granted the City's motion for a directed verdict at the close of the plaintiffs' case. The magistrate concluded that the City had not failed to properly train Officer Miller, and that the City's loitering ordinance--whether constitutional or not--had no causal connection to the plaintiffs' injuries. The plaintiffs' claims against Miller were submitted to a jury, which returned a verdict in favor of Miller. When the magistrate entered judgment for Miller on the jury verdict, the plaintiffs filed a Federal Rule of Civil Procedure 50(b) motion for judgment notwithstanding the verdict. The plaintiffs alternatively requested a new trial against Miller under Federal Rule of Civil Procedure 59 based, among other reasons, upon inaccuracies in the jury instructions. The magistrate denied both motions, and this appeal followed. We shall address the issues pertaining to the City of Irvine and to Officer Miller separately.


The plaintiffs' claims against the City of Irvine, which were dismissed in toto on the City's...

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