Pittsley v. Warish

• Decision Date: 09 November 1990
• Docket Number: No. 90-1372,90-1372
• Citation: 927 F.2d 3
• Parties: 32 Fed. R. Evid. Serv. 544 Danielle J. PITTSLEY, et al., Plaintiffs, Appellants, v. Sergeant Philip WARISH, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 3

927 F.2d 3

32 Fed. R. Evid. Serv. 544

Danielle J. PITTSLEY, et al., Plaintiffs, Appellants, v. Sergeant Philip WARISH, et al., Defendants, Appellees.

No. 90-1372.

United States Court of Appeals, First Circuit.

Heard Nov. 9, 1990.

Decided Feb. 27, 1991.

Rehearing and Rehearing En Banc Denied

April 17, 1991.

David G. Oedel with whom Gaston & Snow was on brief, Boston, Mass., for plaintiffs, appellants.

Edward B. McGrath with whom Thomas B. Farrey, III and Burns & Farrey were on brief, Worcester, Mass., for defendants, appellees.

Before BREYER, Chief Judge, BROWN, ^* Senior Circuit Judge, and CAFFREY, ^** Senior District Judge.

CAFFREY, Senior District Judge.

Plaintiffs, Donna J. Pittsley and her two children, Joseph and Danielle, sued the City of Taunton and several of its police officers pursuant to 42 U.S.C. Sec. 1983, alleging violations of their civil rights under the United States Constitution. Plaintiffs also alleged pendent state claims under the Massachusetts Civil Rights Act, Mass.Gen.L. ch. 12 Sec. 11I, intentional and negligent infliction of emotional distress, and inadequate or negligent supervision. The police officers sued included Sergeant Philip Warish and several other unknown officers. At the close of the plaintiffs' evidence, the trial court directed verdicts for the defendants on all of the children's claims. ¹ The district court also directed verdicts for the City of Taunton on all counts. Ms. Pittsley's remaining constitutional and tort claims against the individual defendants were sent to the jury. The jury returned verdicts finding that the defendants were not liable on any of the remaining claims. Plaintiffs then appealed. The issues on appeal include the appropriateness of the directed verdicts, the exclusion of certain evidence and other evidentiary rulings. ² After carefully reviewing the record and the appellants' arguments, we affirm the district court's rulings and the jury's verdict.

I.

We begin by stating the relevant facts in the light most favorable to the plaintiffs. See Kinan v. Brockton, 876 F.2d 1029, 1036 (1st Cir.1989). The plaintiffs', Donna Pittsley and her two children, Joseph and Danielle, suit arises out of four incidents alleged to have occurred between the Pittsleys and the Taunton police. Joseph was approximately four at the time of the events complained of, and Danielle was approximately ten. Herbert Egersheim, a live-in companion during 1987, was neither the husband of Donna Pittsley nor the biological father of the children.

During the first incident, which occurred in late August or September, 1987, two Taunton police officers drove their police car into the Pittsley's driveway and asked the children whether their mother or father was home. After the children responded that their parents were not home, the officers told Joseph and Danielle "if we see your father [Herbert Egersheim] on the streets again, you'll never see him again." The second incident involved a conversation between Ms. Pittsley and two Taunton police officers, Philip Warish and another unknown officer. This incident occurred a few weeks after the first incident, again at the Pittsley home. During the conversation between Ms. Pittsley and the two officers, the unknown officer said in the presence of Warish, that he wanted to break Egersheim's "F'n kneecaps" and threatened that he was going to kill Ms. Pittsley.

The next incident occurred several days later, on October 5, 1987, when the police arrived at the Pittsley's home with a valid arrest warrant for the arrest of Egersheim. Ms. Pittsley testified that Warish, while executing the arrest warrant, "treated my children very badly" although "he did not put his hands on them." She further stated, "my children wanted to give Herbert a hug and a kiss goodbye," but Warish refused to let them, "using vulgar language." The next morning, Ms. Pittsley filed an internal civilian complaint against Officer Warish at the police station, alleging that Warish had threatened to do bodily harm to her; and disturbed the peace, in particular by frightening her children.

Finally, the last incident complained of occurred a few days after the arrest of Egersheim when Warish saw Ms. Pittsley in the hall of the courthouse. Warish allegedly told her that she had no right to file a court complaint against him, and if she went ahead with it, he would "get her." Ms. Pittsley testified that Warish also stated that if she showed up at the complaint hearing, he would kill her. Thereafter, the plaintiffs allege they moved from Taunton out of fear for their lives.

Early in the trial, the district court denied plaintiffs' motion in limine, the denial of which allowed the defendants' counsel to elicit information from Ms. Pittsley concerning a prior gun-possession charge of which she was later acquitted. The gun charge stemmed from incidents that occurred on August 11, 1987, when defendant Philip Warish arrested Ms. Pittsley for motor vehicle violations and possession of an unregistered handgun. Warish also testified against her at the criminal trial which arose out of these charges. Ms. Pittsley was eventually acquitted on the gun charge but was convicted of attaching license plates to a motor vehicle and driving an unregistered vehicle.

At the conclusion of all the evidence, the district court judge granted the City of Taunton's motion for a directed verdict. The judge also directed a verdict as to the constitutional and pendent state claims of Joseph and Danielle Pittsley. After deliberation, the jury returned a verdict in favor of the sole remaining defendant, Philip Warish. The plaintiffs then appealed the entry of the directed verdicts on the civil rights counts and certain evidentiary rulings made by the district court judge.

II.

In reviewing a directed verdict, this Court will view the evidence and will make all reasonable inferences in the light most favorable to the plaintiff. The question is whether when the evidence is seen in this light, reasonable jurors could come to but one conclusion. Kinan v. Brockton, 876 F.2d at 1036; Kuras v. International Harvester Co., 820 F.2d 15, 17 (1st Cir.1987). Wildman v. Lerner Stores Corp., 771 F.2d 605, 607 (1st Cir.1985); Goldstein v. Kelleher, 728 F.2d 32, 39 (1st Cir.), cert. denied, 469 U.S. 852, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). We now turn to an application of this standard to the plaintiffs' arguments raised on appeal relating to the directed verdicts.

The first issue raised by the plaintiffs is whether the district court erred in directing a verdict for the defendants on Danielle and Joseph's constitutional claims. The plaintiffs argue that the defendants' conduct violated a right or privilege protected by their constitutional right to due process. Specifically, the children allege violations of the right to family associational privacy, court access, and substantive due process. In response, the defendants argue that the children's claims were properly dismissed because the plaintiffs failed to establish at trial the deprivation of any constitutionally protected right.

To prevail in an action brought under 42 U.S.C. Sec. 1983, a plaintiff must show that he or she was deprived of a right, immunity, or privilege secured by the constitution or laws of the United States by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). There is no question that the individual defendants, in their capacity as officers of the City of Taunton Police Department, acted under color of state law. See Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d 492 (1961). Therefore, the question becomes whether the actions and statements made by the police constituted a violation of the children's constitutional rights actionable under Sec. 1983.

Due process claims may take either of two forms: "procedural due process" or "substantive due process." See generally Hall v. Tawney, 621 F.2d 607, 610-13 (4th Cir.1980). Procedural due process requires that the procedures provided by the state in effecting the deprivation of liberty or property are adequate in light of the affected interest. Substantive due process, however, imposes limits on what a state may do regardless of what procedural protection is provided. See Monroe v. Pape, 365 U.S. at 171-72, 81 S.Ct. at 475; Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952). In this case, it is the state's conduct that is challenged by the plaintiffs as being impermissible, not the adequacy of the procedure. Thus, we examine plaintiffs' claims under the rubric of substantive due process.

The Supreme Court has enunciated two alternative tests by which substantive due process is examined. Under the first theory, it is not required that the plaintiffs prove a violation of a specific liberty or property interest; however, the state's conduct must be such that it "shocks the conscience." See Rochin, 342 U.S. at 172, 173, 72 S.Ct. at 209-10. To succeed under the second theory, a plaintiff must demonstrate a violation of an identified liberty or property interest protected by the due process clause. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); see also Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983) (state must provide medical care to persons with serious medical needs while in state custody); Youngberg v. Romeo, 457 U.S. 307, 315, 319, 102 S.Ct. 2452, 2457, 2459, 73 L.Ed.2d 28 (1982) (individual committed to a state institution has a protected liberty interest in receiving reasonably safe living conditions and freedom from unreasonable bodily restraints); Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977) (corporal punishment of a student inflicted by a public school...