Brandon v. Allen, C-78-2076.

• Decision Date: 08 July 1981
• Docket Number: No. C-78-2076.,C-78-2076.
• Citation: 516 F. Supp. 1355
• Parties: Elizabeth A. BRANDON and James S. Muse, Plaintiffs, v. Robert J. ALLEN and E. Winslow Chapman, Defendants.
• Court: U.S. District Court — Western District of Tennessee

516 F. Supp. 1355

Elizabeth A. BRANDON and James S. Muse, Plaintiffs, v. Robert J. ALLEN and E. Winslow Chapman, Defendants.

No. C-78-2076.

United States District Court, W. D. Tennessee, W. D.

July 8, 1981.

G. Phillip Arnold, Memphis, Tenn., for plaintiff.

Henry Klein, Memphis, Tenn., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

HORTON, District Judge.

This is a civil action against the Honorable E. Winslow Chapman, in his official capacity as Director of the Memphis Police Department, and former Memphis Police Officer Robert J. Allen. Plaintiffs, Elizabeth A. Brandon and James S. Muse, seek actual and punitive damages from the defendants for an assault and battery committed upon them by ex-officer Allen and for declaratory relief all pursuant to 42 U.S.C. §§ 1983, 1988, and the Fourteenth Amendment to the Constitution of the United States. Due to his failure to appear or answer the charges in the complaint, a default judgment was entered against the defendant Robert J. Allen. The case was heard by the Court on September 29 and 30, 1980.

Plaintiffs allege the following:

1) An off-duty police officer acts under color of state law;

2) As Director of Police and as an agent of the City of Memphis, Mr. Chapman should have known of Mr. Allen's dangerous propensities;

3) Mr. Chapman should have taken steps to dismiss Mr. Allen from the Police Force prior to the occurrence of the incident involving plaintiffs 4) Policies existed which precluded the Police Department from taking action to discover dangerous propensities among certain officers, and those policies encouraged "cover-up" of police misconduct;

5) Mr. Chapman's inaction was the cause of plaintiffs' pain, serious physical and emotional injuries, and property damage, and defendant's inaction denied plaintiffs equal protection of the law;

6) Mr. Chapman's willful, wanton, and reckless conduct constitutes a basis for an award of punitive damages.

Defendant E. Winslow Chapman, as an agent of the Memphis Police Department, presented the following defense:

1) He had no actual knowledge of the dangerous propensities of Officer Robert J. Allen;

2) It is impossible for the Police Director of more than 1,200 officers to be personally informed of each incident of police misconduct;

3) Upon his arrival as Police Director, he instituted a new policy, which provided for his personal involvement in cases of police misconduct;

4) Silence among police officers, review by the Civil Service Commission, and provisions of a union contract limited the Police Director's ability to discipline officers;

5) Officer Allen's disciplinary record at the time of the incident involving plaintiffs did not warrant dismissal from the Police Force;

6) Under the circumstances of this case, it cannot be said that Mr. Chapman should have known of Mr. Allen's dangerous propensities.

The Court, pursuant to Rule 52, Federal Rules of Civil Procedure, makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1) On March 5, 1977, at approximately 11:30 p. m. plaintiffs, who were seventeen years of age, drove to the Memphis Hunt and Polo Club while on a date and parked in a dark and secluded driveway area. The driver of the vehicle was plaintiff James S. Muse. After approximately thirty minutes had elapsed, a Chevrolet pickup truck entered the driveway where plaintiffs were parked. The truck proceeded down the driveway and returned a few minutes later, stopping near Mr. Muse's car. The driver of the truck identified himself to plaintiffs as a police officer and showed them an official police identification card bearing the name and photograph of Robert J. Allen. Mr. Allen was in fact employed as an officer with the Memphis Police Department, but he was off duty at that time. Mr. Allen ordered Mr. Muse to step out of the car. After briefly questioning him, Officer Allen maliciously, and without provocation, struck Mr. Muse in the neck and head with his fist and then stabbed and cut Muse on the neck and ear with a knife. As Officer Allen tried to break into the car where plaintiff Elizabeth A. Brandon was seated, Mr. Muse jumped into the driver's side of the car and quickly drove away. Officer Allen fired a shot at the escaping vehicle from his police revolver. The bullet shattered the front window on the driver's side of the car. Officer Allen followed plaintiffs in a high speed chase which ended at St. Joseph's Hospital East, where plaintiffs sought medical care and assistance and reported the unprovoked attack upon them by Officer Allen.

2) Miss Brandon was treated in the emergency room for facial cuts caused by the shattered glass. Later, a bullet fragment was removed from her face. Mr. Muse underwent three hours of plastic surgery and was hospitalized for two days. He was required to return to his physician periodically for additional treatment. Mr. Muse still has scars on his face.

3) Both plaintiffs have suffered great physical pain and anguish as a result of the incident. Miss Brandon testified that she has experienced nightmares, headaches, irritability, impatience, withdrawal, fear, and emotional distress. Mr. Muse testified that he has had difficulty sleeping since the incident. He has suffered fear and emotional distress. He sustained damage to his car. Both plaintiffs testified they have lost respect for the police. Their senior year in high school was disrupted by the incident. There is evidence that plaintiffs are likely to bear some emotional scars from this experience for the remainder of their lives.

4) Although Officer Allen was technically off duty at the time of the incident, an off duty Memphis policeman is authorized to be armed. He is required to act if he observes the commission of a crime. The Court therefore finds that Officer Allen's use of his Memphis Police identification card and police service revolver were acts done under color of state law.

5) Officer Allen's reputation for displaying maladaptive behavior was well known among Police officers in his precinct. When informed of the incident involving plaintiffs, the following statements were made by Officer Allen's colleagues:

They finally caught up with him; he's a quack; Allen has done something this time that he can't get out of.

Allen's reputation as a "mental case" was widespread among the officers. Because none of the officers wished to ride in the same squad car with Officer Allen, he was frequently relegated to ride by himself. He was known to have bragged about killing a man in the course of duty. Officer Allen had often stated to other officers that he wished he knew the exact bullet spread in the chest of the man he killed. Officer Allen referred to a pair of gloves in his possession as his "killing gloves," and he would ceremoniously put those gloves on his hands when he was called to the scene of a crime.

6) At least on one prior occasion, an officer reported Officer Allen's morbid conduct to a supervisor. Officer Joe Davis made that report to Captain D. A. Moore and requested that he be assigned to ride with someone other than Officer Allen. As long as Captain Moore was at Mr. Davis' precinct, this request was honored for the most part.

7) At least two formal complaints were filed with the Memphis Police Department by citizens against Officer Allen prior to the incident involving plaintiffs. Kathleen Myrick had filed a complaint alleging "conduct unbecoming of an officer." Jeanne DeBlock testified that Officer Allen had stopped her on the interstate highway, ordered her into his squad car and taunted her for about an hour and a half. During that time he ordered her to repeat her story to him at least four times. When he released her, she called him a name, and he threw her back into his squad car, taunted her for at least another hour, took her to jail for the night and impounded her car. Although she had presented a valid driver's license when asked, Officer Allen charged her with driving without a license and speeding. Officer Allen was given an oral reprimand based upon Ms. Myrick's complaint. No action was taken against him for Ms. DeBlock's complaint. Upon his departure from the Memphis Police Department in March of 1977, twenty complaints against Officer Allen were part of his police file records. Those included complaints for serious abuse of police authority and use of unnecessary force. Officer Allen had received several commendations while a police officer. He was subsequently convicted and imprisoned for his role in the incident involving plaintiffs.

8) Defendant Chapman has been Police Director since his appointment in September, 1976. Prior to his Administration, there was no direct involvement of the Police Director with matters of officer misconduct. Mr. Chapman devised procedures which provided for his personal involvement with matters of misconduct. Those procedures were not implemented until early in the year of 1977. The old procedure was followed until Director Chapman's new procedures were adopted and implemented. The new procedures operated prospectively. Thus, Mr. Chapman was not apprised of Officer Allen's disciplinary record, since he had failed to review the existing records of police officers relating to misconduct.

9) Even under the new procedures implemented by Mr. Chapman, Officer Allen would not have been dismissed from the Memphis Police Department based upon his police disciplinary record at the time of the incident involving plaintiffs. The new procedures failed to encourage or impose any duty on officers to file formal complaints on their own initiative against other officers when warranted. Mr. Chapman's plan also failed to impose a duty on supervisors to take action to seek out and discover officers who might have dangerous propensities. Even under the new procedures, immediate supervisors of the officers were insulated from knowledge of officer misconduct. In the absence of the filing of formal complaints by...