Bovey v. City of Lafayette, Ind.

Decision Date23 May 1984
Docket NumberNo. L 82-116.,L 82-116.
PartiesRichard O. BOVEY and Michelle Bovey, Plaintiffs, v. The CITY OF LAFAYETTE, INDIANA, and Dennis Brady, Defendants.
CourtU.S. District Court — Northern District of Indiana

William K. Bennett, Lafayette, Ind., Kelly Leeman, Logansport, Ind., Courtney B. Justice, Delphi, Ind., for plaintiffs.

Edwin L. Gagnon, Mary Ann Oldham, Indianapolis, Ind., E. Kent Moore, Lafayette, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

This case was filed on the 27th of December, 1982. Originally claims were asserted under Title 42 U.S.C. §§ 1983 and 1985. The jurisdiction of this court is invoked on the basis of federal question jurisdiction under Title 28, U.S.C. § 1331 and § 1343(3).

As a preliminary this court takes judicial notice of the earlier proceedings in this case, particularly those on the 5th of May, 1983, in which any and all punitive damage claims were dismissed as against the City of Lafayette, Indiana, under authority of City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), and the complaint was dismissed as against the defendant, Ronald T. Milks, individually and as Chief of Police of the Police Department of the City of Lafayette, Indiana, with leave to file an amended complaint by June 1, 1983. No such amended complaint was filed. This memorandum is intended to comply with Rule 52 F.R.C.P.

The parties by counsel very explicitly in writing and orally waived their right to a trial by jury under the Seventh Amendment of the Constitution of the United States. This case was tried before the court without the intervention of a jury for seven trial days beginning on April 2, 1984 and concluding with final arguments on April 11, 1984. The case was tried by highly competent and experienced trial counsel. The intensity of emotion between the principals was readily evident from their conduct in the courtroom throughout this trial as well as that of their "camp followers" who filled the courtroom.

At the close of the plaintiff's evidence on April 9, 1984 a directed verdict was granted on all claims asserted against the defendants, Edward Moser and Dan Money, by all plaintiffs. Also, at that time a directed verdict of dismissal was granted as to all claims by plaintiffs, Gary Bovey and Mark Bovey, as to all remaining defendants.

The principal focus of this court's decision must be measured by standards embedded in the Constitution of the United States under the Fourteenth Amendment and the remedies that are found in 42 U.S.C. § 1983. (It is also necessary to deal briefly with pendent claims that are asserted under the substantive law of the State of Indiana.)

The principal actor in this local drama is Richard Bovey, a well educated, intellectually sophisticated, aggressive and sometimes intimidating advocate, both in and out of the courtroom, who is both blessed and cursed with an advanced case of self-righteousness. It is beyond any doubt that there is a social need for lawyers such as Richard Bovey who sometimes put our system to its supreme test and once in awhile help in the process of cleansing the secular temple. However, the record in this case demonstrated that an excessive amount of time has been spent on this otherwise minor incident by a great number of the members of the legal profession in Lafayette, Indiana, by the local judiciary in Tippecanoe County, Indiana, by the Police Department in the City of Lafayette, and indeed by this court itself.

The other principal actor in this local cause celebre is Dennis Brady who has maintained his athletic handsomeness from twenty years ago when he was Mr. Basketball in Indiana, which under the prevailing cultural Hoosier mores is the rough equivalent to secular sainthood. Dennis Brady has the arrogance and agressiveness born of public adulation. It is beyond any dispute that those characteristics can often serve a police officer, such as Brady, very well. In this case they did not.

On November 29, 1982 at approximately 9:00 o'clock P.M. Richard Bovey, with his wife and two children, was traveling east on Union Street, Lafayette, Indiana, in a white VW station wagon. When he was approximately one-fourth mile west of the intersection of Union and Creasy, defendant Officer Brady clocked his speed, by radar, at 49 m.p.h. in a 30 m.p.h. posted speed zone. Officer Brady, who had a civilian, Brent Lank, riding with him, pulled in behind the Bovey vehicle at the intersection and when they crossed Creasy, he turned on his red top lights to stop him.

Bovey pulled into a church parking lot on the southeast corner of the intersection and Officer Brady followed him. When the vehicles came to a stop they were anywhere from 15 to 40 feet apart. Both Bovey and Brady got out of their vehicles and they met at the rear of Bovey's vehicle. Brady's vehicle lights were shining at the rear of Bovey's vehicle.

Bovey asked Brady why he was stopped and informed Brady that he was an attorney. Brady informed Bovey that he was speeding, 49 in a 30, and pointed to where he had clocked his speed. Brady asked to see Bovey's driver's license and vehicle registration. Bovey produced his driver's license and replied that he couldn't have been speeding because he was slowing down for the intersection. Brady asked to see his vehicle registration. Bovey then asked Brady if he was going to give him a ticket and again informed him that he was an attorney. Brady assured Bovey that he was going to give him a ticket for speeding.

Bovey then proceeded to the passenger side of his vehicle and opened the glove compartment and again informed Brady that he wasn't speeding. At this time, Mrs. Bovey, sitting in the rear of the vehicle on the passenger side, reached out through the window and touched Brady's left arm, protesting the speeding charge. Officer Brady removed his arm from her grasp and asked her not to grab him. Bovey then proclaimed to Brady that he hit his wife and ordered him not to talk to his wife that way. Officer Brady told Mr. Bovey that he still needed to see his driver's license. Bovey then began to yell and scream at Officer Brady, telling him that he already had his license and accused him of making false accusations. Bovey yelled and screamed again that Brady was making false accusations, that he had hit his wife, that he was tired of these abuses toward him and his wife.

Officer Brady then told Bovey to calm down, to settle down, that he was being disorderly, that he could be arrested and jailed for being disorderly, and asked him again to produce his registration so that he could write the ticket and Bovey could "tell it to the Judge." Bovey continued to yell and scream, gesturing with his hands in Brady's face, about false accusations. Officer Brady warned Bovey several more times about calming down and producing his registration. Bovey did not produce his registration. Bovey again informed Brady that he was an attorney and that Brady could not arrest him and jail him and that he wasn't going to take him anywhere. Brady then informed Bovey that he was under arrest and asked him to place his hands on top of his vehicle. Bovey refused to do so and Brady took hold of Bovey's left hand and placed it on top of his vehicle and handcuffed his left wrist, with one hand, and brought it behind his back at waist level. Mrs. Bovey touched Brady's arm again and again Brady jerked out of her grasp.

Brady asked Bovey to give him his right hand so that he could handcuff it and Bovey refused. Brady attempted to cuff the right hand but without success. Thereupon, Brady forcibly walked Bovey to his police vehicle with Bovey's left hand handcuffed and his right hand free. Bovey forcibly resisted all the way. Mrs. Bovey again touched Brady, this time on his right arm and Brady again told her not to do that and warned her that she could be arrested for interfering. Bovey demanded to know who Brady was and when Brady told him, he stated to his wife, "That's Brady, take note of what he is doing." Bovey told him that he was embarrassing him in front of his neighbors. No neighbors were immediately present.

When Brady arrived at his police vehicle with Bovey in tow, he again attempted to handcuff Bovey's right hand and Bovey again refused to cooperate. At this time, Edward Steiner was passing by the scene and noticed a struggle between Brady and Bovey and it appeared to him that Bovey was resisting Brady's efforts to handcuff him. Steiner hurried to Lora Letson's house, which was near the area, dropped his daughter off and asked Mrs. Letson to call the police for help, which she did.

At this time, Indiana State Trooper Michael McCormick, who had been running radar with Brady at the intersection previously, arrived at the scene and after several attempts was able to handcuff Bovey's right hand. Then both officers attempted to place Bovey in Brady's police vehicle. Bovey refused to get in, claiming that he was too big to fit with his hands cuffed behind his back and complained of pain, a claim well supported by the evidence. At this time, Mrs. Bovey reached between the officers and grabbed Brady on his jacket. Brady again jerked out of her grasp and ordered her back to her vehicle telling her to shut up or she would be arrested for interfering. Brady never struck Mrs. Bovey.

Bovey then started struggling, moving his feet and jumping up and down and yelled that Brady hit his wife. Mrs. Bovey agreed that he did. Bovey's glasses fell or were knocked off at this time. Brady placed his right hand against Bovey's chest and moved him up into the door opening and ordered him not to knee him again. Bovey then informed both officers that he was going to ride with McCormick, not Brady. Brady agreed and both officers escorted Bovey to McCormick's vehicle, which was parked on Union Street. Bovey easily and without difficulty slid into the front seat, with both hands cuffed behind...

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