Agee v. Hickman, 73-1496.
| Decision Date | 31 January 1974 |
| Docket Number | No. 73-1496.,73-1496. |
| Citation | 490 F.2d 210 |
| Parties | Virgil Dale AGEE, Appellant, v. Kenneth HICKMAN et al., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Arthur A. Benson, II, Kansas City, Mo., for appellant.
William A. Moon, Springfield, Mo., for appellees.
Before VAN OOSTERHOUT, Senior Circuit Judge and LAY and STEPHENSON, Circuit Judges.
This is an action brought by plaintiff Agee against Hickman and Smart, Deputy Sheriffs of Greene County, Missouri, individually and in their official capacities, for damages caused by excessive force alleged to have been used in arresting plaintiff and taking him into custody.1
Jurisdiction is based on 28 U.S.C. § 1343. Plaintiff's action is brought for violation of his constitutional rights pursuant to 42 U.S.C. § 1983.
The case was tried to the court (Judge Collinson) without a jury, no request for a jury trial having been made. Judge Collinson dismissed the complaint on the basis of his finding of fact that the force used by the officer-defendants was reasonable and necessary to effect his arrest. This timely appeal is based upon plaintiff's contention that such finding is clearly erroneous. We disagree and affirm for the reasons hereinafter set out.
We shall briefly summarize the pertinent evidence. Plaintiff and his companion Watts, both of whom had substantial criminal records, on October 1, 1970, had been driving around in plaintiff's car and admitted that they had consumed a considerable amount of whiskey and beer. Deputy Sheriffs Hickman and Smart, while on routine duty, observed plaintiff's car with his name printed thereon parked on a road about four miles from Springfield, Missouri. The officers stopped to investigate. They heard a woman scream and shortly after saw a twelve-year-old girl running out of the woods toward the road with the plaintiff in pursuit. Hickman went to the girl, whom he recognized as a neighbor. Her clothing was torn and she was sobbing and hysterical. The girl said she had been raped and her clothing, appearance and mental distress corroborated her story.
Officer Smart stopped the plaintiff, arrested him, and handcuffed him with his hands placed behind his back, and brought him to the patrol car. Shortly thereafter Hickman arrived in the patrol car with the victim. He directed Smart to remove the handcuffs and this was done. Hickman took hold of plaintiff by the shoulder and asked him if he had raped the little girl. Plaintiff backed away, squared off and clenched his fists, and declared that he was in pretty good shape. Hickman admits that at this point he punched the plaintiff in the stomach with his fist and slapped him a couple of times on the face. Plaintiff claims he was hit more often. Each deputy then took the plaintiff by a hand and had him lean over the car hood to put on the handcuffs. Plaintiff raised up suddenly before the cuffs were replaced and he was pushed down to a bending position, his face striking the hood of the car. The handcuffs were then placed on the plaintiff with his hands behind his back and he was taken to headquarters and booked.
There is a conflict in the evidence as to the extent of plaintiff's injuries. Plaintiff testified as a witness and was unable to say how often he was beaten. In answer to the question, "As best you recall, how many times were you struck?", he replied, "It would be hard for me to say, several times." With respect to the removal of the handcuffs his testimony is, "I don't recall the handcuffs ever being removed."
Plaintiff further testified that he made no complaints to the sheriff, the jailer or anyone else about being beaten. He made no complaint about abusive treatment until approximately one year after the incident, as evidenced by the following testimony. When asked, "Was it when you filed your 2726 about a year later?", he answered, "Possibly, yes, sir, I believe so." It is undisputed that the plaintiff suffered no permanent injury and that no medical attention was requested by plaintiff or required.
Prior to the commencement of this suit, plaintiff was convicted of rape of the little girl and was serving a ninety-nine-year prison sentence. No challenge has been made to the validity of plaintiff's arrest. Plaintiff's sole contention is that the officers used more force than necessary to accomplish his arrest and that the blows inflicted upon him were for the purpose of punishing him and were not necessary to effect the arrest or keep him in custody.
We are somewhat troubled by the release of plaintiff from his handcuffs at the direction of Hickman. Hickman was produced as an adverse witness by the plaintiff. On examination by defendants' counsel, the following evidence was received.
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