Brandenburg v. Cureton
| Decision Date | 11 August 1989 |
| Docket Number | No. 87-6371,87-6371 |
| Citation | 882 F.2d 211 |
| Parties | Barbara Ann BRANDENBURG, Plaintiff-Appellee, v. Harry E. CURETON, Lynn Murphy, Calvin Morton, Jr., Defendants, Appeal of Warren G. HATFIELD, Roy Sharp and Mark Wright, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert H. Watson, Jr., Watson & Emert, Knoxville, Tenn., John C. Duffy (argued), Watson, Reeves & Beeler, Knoxville, Tenn., for defendants-appellants.
John K. Harber (argued), Pryor, Flynn & Priest, Knoxville, Tenn., for plaintiff-appellee.
Before: NELSON and BOGGS, Circuit Judges; and ENSLEN, District Judge. *
Sgt. Butch Hatfield, Deputy Mark Wright, and Detective Roy Sharp appeal the judgment entered against them for $75,000 in compensatory damages for a violation of the constitutional rights of plaintiff Barbara Ann Brandenburg and her deceased husband Dallas Brandenburg. Since the jury was presented with an impermissible theory of recovery, we reverse the judgment. We order a new trial as to the claim against detective Roy Sharp because we believe that there are material factual issues yet to be determined regarding plaintiff's claim that Sharp violated the constitutional rights of Dallas Brandenburg when he killed him while attempting to serve a peace warrant.
Dallas Brandenburg and his wife, Barbara, owned a mobile home located on thirty acres of land in Campbell County, Tennessee. In December 1983, the Brandenburgs sold their mobile home to Karen and Billy Collette and gave the Collettes permission to remain on their land for one year. The Collettes were persistently late in making their monthly payments, and the Brandenburgs traveled from Florida to Campbell County to discuss this problem with the Collettes. On June 7, 1984, the Brandenburgs arrived at their property and allegedly discovered that the Collettes had been abusing the property, specifically, that they had damaged the mobile home and burned a portion of a log home kit that the Brandenburgs had stored on the property. At this time, Dallas Brandenburg requested that the Collettes get off the property, but the Collettes refused to go.
On June 8, 1984, the Brandenburgs went to the Campbell County Courthouse for the purpose of instituting a detainer action against the Collettes. While at the Courthouse, the Brandenburgs saw the Collettes and overheard them attempting to obtain a peace warrant against Dallas Brandenburg to prevent him from going to the Collettes' residence. Mrs. Brandenburg contends that they did not know at that time if the Collettes obtained a peace warrant.
The Brandenburgs were unsuccessful in their efforts to institute a detainer action against the Collettes, and the next day, June 9, Mrs. Brandenburg claims that they went to their property in order to pack and return to Florida. At approximately the same time, defendants Sharp, Hatfield, and Wright met near the Brandenburg property to prepare to serve on Dallas Brandenburg a peace warrant that had been issued the previous day. Apparently there was no specific preparation for serving the warrant regarding who was in charge or what procedure would be used. Defendants assert that it was routine for Hatfield to be in charge of talking with the suspect. Defendants had been warned by the Collettes that there "might be trouble" in serving the warrant, but the defendants all agreed that this was a common concern of those who obtained peace warrants.
The defendants left for the Brandenburg property in two cars, one clearly marked as a police vehicle, the other unmarked. The unmarked car was in the lead. Detective Sharp, dressed in plain clothes in the unmarked car, arrived first, but the other car was close behind. The two cars entered the property through a gate, went up a road and stopped about 125 yards from where the Brandenburgs were loading their truck. The defendant officers immediately got out of their vehicles, each holding a shotgun. At this point, Dallas Brandenburg retrieved his rifle from the back of his truck. There is some disagreement about when the Brandenburgs first became aware that the defendants were law enforcement officers. Barbara Ann Brandenburg testified that she only noticed the lead man, who was dressed in plain clothes, and that when they initially got out of the cars, all of the officers spoke at once. It is clear that the Brandenburgs realized that they were dealing with law enforcement officers when Officer Hatfield advised the Brandenburgs over the patrol car's loudspeaker who he was and that he was there to serve the peace warrant. At this time, Dallas Brandenburg fired six shots, at least the first two (but perhaps all) into the air, and told the officers to leave his property or they would be killed. Hatfield asked Mr. Brandenburg if they could pull up and use the turn around in order to exit, and Brandenburg refused this request. The officers then began to back out of the driveway, although Sharp initially could not start his car. At this same time, Mr. Brandenburg got in his truck to follow the officers.
Subsequently, both police vehicles backed out past the fence, and the officers parked their cars and again got out with shotguns in hand. By the time Mr. Brandenburg drove his truck to a point just inside the fence, the officers were crouched between the two police vehicles. Sharp testified that Mr. Brandenburg got out of his truck, "stepped around to the gate, laid the rifle down right before he got to the gate," and then closed the gate. The officers began instructing him to submit to their peace warrant and not to pick up his rifle. Apparently, Brandenburg moved to pick up his rifle when officer Hatfield fired a warning shot. Brandenburg then picked up his rifle, and at this time, Sharp fired his weapon and killed Brandenburg.
Dr. Cleland Blake, a board-certified pathologist, examined the body and testified that when the fatal bullet entered Mr. Brandenburg's body, his left arm was extended but his right hand was not in a grasping position.
Plaintiff Barbara Ann Brandenburg sued under 42 U.S.C. Sec. 1983, alleging violations of her constitutional rights and those of her deceased husband. At the conclusion of plaintiff's proof at a jury trial, the judge directed a verdict in favor of two other defendants, but refused to direct a verdict for Sharp, Wright, or Hatfield and allowed the claims against them to go to the jury. On November 5, 1987, the jury returned a verdict against the remaining defendants, jointly and severally, for $75,000. Defendants appeal the trial court's refusal to grant a directed verdict or judgment notwithstanding the verdict.
When judging whether a trial court correctly granted or denied a motion for a directed verdict, an appellate court is to determine "whether without weighing the credibility of the witnesses or considering the weight of the evidence, there is substantial evidence from which the jury could find in favor of the party against whom the motion is made." Bellamy v. Bradley, 729 F.2d 416, 418 (6th Cir.1984).
Appellants contend that the verdict should be vacated and the case dismissed because the jury based its verdict on an impermissible theory of law, and when this theory is removed, there is no set of facts under which the jury can find a constitutional violation. Alternatively, appellants claim they are immune from suit. We explore each of these contentions in turn.
When two claims have been submitted to a jury and one of them should not have been submitted, a general verdict in favor of the plaintiff cannot stand, since it is impossible to know whether the jury based its decision on the improper theory. United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 619, 79 S.Ct. 517, 520, 3 L.Ed.2d 541 (1959); O'Neill v. Krzeminski, 839 F.2d 9, 12 (2nd Cir.1988). However, if it is clear that only the correct theory of recovery was relied upon by the jury, the judgment can stand. Ibid.
Appellants argue that the plaintiff's counsel's closing argument assailing the poor procedural preparation of the law enforcement officers, coupled with the introduction of evidence concerning those procedures, put an improper theory of "negligent" deprivation of constitutional rights before the jury and did so in such a way that it is impossible to know if this was the theory upon which the jury based its decision. We agree.
We first note that the claim based upon the poor tactical preparation of the law enforcement officers should not have been submitted to the jury. This court has held that outrageous cases of "gross" negligence may give rise to a claim for deprivation of constitutional rights under 42 U.S.C. Sec. 1983, while mere negligence cannot. See Nishiyama v. Dickson County, Tenn., 814 F.2d 277, 283 (6th Cir.1987) (en banc); see also Jones v....
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