944 F.2d 949 (1st Cir. 1991), 90-1480, Lewis v. Kendrick

Docket Nº:90-1480 to 90-1482.
Citation:944 F.2d 949
Party Name:Diane LEWIS, Plaintiff, Appellee, v. Henry KENDRICK and Lee Kendrick, Defendants, Appellants. Diane LEWIS, Plaintiff, Appellee, v. Henry KENDRICK, et al., Defendants, Appellees, City of Brockton, Defendant, Appellant. Diane LEWIS, Plaintiff, Appellant, v. Henry KENDRICK, [*] et al., Defendants, Appellees.
Case Date:April 26, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 949

944 F.2d 949 (1st Cir. 1991)

Diane LEWIS, Plaintiff, Appellee,

v.

Henry KENDRICK and Lee Kendrick, Defendants, Appellants.

Diane LEWIS, Plaintiff, Appellee,

v.

Henry KENDRICK, et al., Defendants, Appellees,

City of Brockton, Defendant, Appellant.

Diane LEWIS, Plaintiff, Appellant,

v.

Henry KENDRICK, [*] et al., Defendants, Appellees.

Nos. 90-1480 to 90-1482.

United States Court of Appeals, First Circuit

April 26, 1991

Heard Jan. 9, 1991.

On Rehearing Aug. 1, 1991.

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[Copyrighted Material Omitted]

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Gerald S. McAuliffe with whom McParland & McAuliffe, was on brief, Quincy, Mass., for Henry and Lee Kendrick.

Frank A. Smith, III with whom Karen M. Thursby and Herlihy & O'Brien were on brief, Boston, Mass., for City of Brockton.

Michael Avery, Boston, Mass., with whom Charles J. DiMare and Antonino & DiMare were on brief, Amherst, Mass., for Diane Lewis.

Before BREYER, Chief Judge, Aldrich, Senior Circuit Judge, and Torruella, Circuit Judge.

BAILEY ALDRICH, Senior Circuit Judge.

This case demonstrates the consequence of lack of knowledge of the Federal Rules of Civil Procedure, and Evidence, and the substantive law, prior to trial: most of the questions sought to be raised are not before us. We start with the facts. Plaintiff Diane Lewis sued Henry and Lee Kendrick, police officers of the City of Brockton, and the City itself. Plaintiff claimed violations of her constitutional rights under 42 U.S.C. §§ 1983, 1985, 1986 and 1988, adding pendent state claims under the Massachusetts Civil Rights Act, M.G.L. ch. 12, § 11I, and Tort Claims Act, M.G.L. ch. 258, § 2, for assault and battery, false arrest, false imprisonment, intentional infliction of emotional distress, and malicious prosecution, with compensatory damages set at $250,000 and punitive damages at $50,000. After ten trial days the jury returned special verdicts against the Kendricks, jointly and severally, under § 1983, in the amount of $1,000, and in the same amount under the state count for false imprisonment. All other claims involving the officers were dismissed, or found in their favor. The sole finding against the City was $3,000, for negligence, under M.G.L. ch. 258, § 2. The court awarded counsel fees against the individual defendants in the amount of $49,685.90, and costs against the individual defendants, of $4,198.97. Defendants appeal. Plaintiff cross-appeals for additional counsel fees. 1

The total events covered by the verdicts were a 15 minute investigation by the police, the facts as to which are disputed, ending with plaintiff's arrest and a trip to the station house, with incarceration for an hour and three quarters awaiting bail. Elaborating, in the early evening of July 19, 1983, Annette Ramadan, a neighbor of the plaintiff, called the Brockton police department to report that the plaintiff was threatening her with a knife. The call went out by the police dispatcher as a code 24B (assault or assault and battery with a dangerous weapon) and the defendant police

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officers Henry and Lee Kendrick, brothers, who happened to be assigned to patrol together that day, responded. When they arrived at Ms. Ramadan's residence, a crowd of children and adults had already assembled. Plaintiff Lewis, upset, approached the officers, asking, according to her, that they "please tell this lady [Ramadan] to stop hitting my kids." The officers, she said, told her to "shut up," to which she responded by calling them "white daddies."

The officers then entered Ms. Ramadan's house and asked what had happened. She responded that her daughter had been hit by plaintiff's daughter and that she (Ramadan) had gone outside to yell at the children. After Ms. Ramadan returned home with her daughter, plaintiff had arrived, wielding a steak knife and threatening to "cut" her. She locked the back door and called the police. In response to the officers' questioning, she emphasized that she was positive that Ms. Lewis had had a knife and she indicated her willingness to make a complaint and testify against her.

The officers, after leaving Ms. Ramadan, immediately arrested Ms. Lewis, taking her, after some resistance by her daughters, to the squad car. They questioned no one at the scene, made no inquiry of the plaintiff as to her version of events, and made no search for the knife. A search at the station house was unfruitful.

Defendants' appeals seek to raise a number of issues. The first is a ruling on evidence allowing plaintiff to introduce 52 internal police files relating to citizens' complaints of false imprisonment, arrest, or use of excessive force, offered to show the City's lack of compliance with its rules and procedures. This was not error as to the City. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 571-75 (1st Cir.1989) (complaint files properly admitted on issue of supervisory liability). The City now complains that the court should have found undue prejudice under Fed.R.Evid. 403. This might have been a reasonable complaint, had the court been asked to consider it. It is a clear illustration, however, of the principle that a party must specify a point, particularly one involving discretion, to the district court for consideration. Fed.R.Evid. 103(a)(1); see Notes of Advisory Committee. The City's ill-founded objection on the ground of hearsay did not do this; nor will we determine it in the first instance. E.g., United States v. Piva, 870 F.2d 753, 759-60 (1st Cir.1989).

Although they did not request it, the individual defendants now complain that the court did not instruct the jury not to consider the files as evidence against them, since they were not named therein. This instruction should have been given if asked for, and is one that courts often give voluntarily. At the same time, counsel must not expect to be nurse-maided. While failure to give limiting instructions even though not requested has sometimes been called plain error, see United States v. Malik, 928 F.2d 17, 23 (1st Cir.1991) (and cases collected therein), on their face these files do not relate to the individual defendants; nor does the record show that plaintiff ever claimed otherwise. We reject plain error.

There are presently three substantive issues, apart from fees: probable cause (all defendants); qualified immunity (police); negligence (City). As to the first, this is a jury matter, B.C.R. Transp. Co. v. Fontaine, 727 F.2d 7, 10 (1st Cir.1984), and defendants say that the evidence conclusively establishes it. We do not agree. On the basis of the previously stated facts, particularly that the police saw no knife, and looked for none, a jury could find that to accept a hitherto unknown alleged victim's uncorroborated account without question, where there was ample opportunity to question it, was a circumstance that weighed against probable cause. Id. at 9-10. While "[a]n asserted victim of a crime is a reliable informant even though his or her reliability has not theretofore been proven or tested," Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir.1972), cert. denied, 412 U.S. 951, 93 S.Ct. 3017, 37 L.Ed.2d 1003 (1973), it is not a per se basis for probable cause. B.C.R. Transp. Co., 727 F.2d at 9-10. On the record as a whole we hold that the jury could have found objective probable cause lacking.

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Before leaving this issue we note defendants' objection to the court's failure to charge on good faith. Probable cause is an objective matter, and not determined by subjective intent. Beck v. Ohio, 379 U.S. 89, 91, 96-97, 85 S.Ct. 223, 225, 228, 13 L.Ed.2d 142 (1964). Possibly the officers intended this to be a request for an instruction on qualified immunity. The question of immunity is for the court. Hall v. Ochs, 817 F.2d 920, 924 (1st Cir.1987). It is not silently reserved. The last opportunity to raise it is by motion for directed verdict. Systemized of New England, Inc. v. SCM, Inc., 732 F.2d 1030, 1035-36 (1st Cir.1984); Fed.R.Civ.P. 50(b). Defendants fell short. At the close of plaintiff's case the City moved, in writing, for a directed verdict, on five grounds, one of which the court allowed. There was no claim of qualified immunity. Counsel for the officers spoke up.

I do not have a written motion for directed verdict. I was going to make a written motion for directed verdict on all counts.

The court replied, "Put it in and we'll take no action, nunc pro tunc." At the close of the evidence counsel for the officers still had no written motion. He merely said, "I simply want to renew my oral motion earlier for directed verdict on all counts...." Perhaps if counsel had complied with the court's instructions for a writing he might have learned that the rule requires in the motion a specification of the grounds. Fed.R.Civ.P. 50(a). In fact, there is nothing unique about the federal rule. See Mass. Superior Court Rule 9A(a)(1). Unhappily, since the motion for judgment n.o.v. can not exceed the...

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