Byrd v. Brishke

• Decision Date: 18 July 1972
• Docket Number: No. 71-1434.,71-1434.
• Citation: 466 F.2d 6
• Parties: Thomas BYRD, Plaintiff-Appellant, v. William P. BRISHKE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

466 F.2d 6 (1972)

Thomas BYRD, Plaintiff-Appellant, v. William P. BRISHKE et al., Defendants-Appellees.

No. 71-1434.

United States Court of Appeals, Seventh Circuit.

Argued March 1, 1972.

Decided July 18, 1972.

David P. Schippers, Michael J. McArdle, Chicago, Ill., for plaintiff-appellant; Schippers, Betar, Lamendella & O'Brien, Chicago, Ill.,, of counsel.

Richard L. Curry, Corp. Counsel, William R. Quinlan, Marsile J. Hughes, Asst. Corp. Counsels, Chicago, Ill., for defendants-appellees.

Before SWYGERT, Chief Judge, PELL, Circuit Judge, and DILLIN, District Judge.^*

SWYGERT, Chief Judge.

This is an appeal from the granting by the district court of defendants' motion for a directed verdict in a civil rights case brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343. Plaintiff alleged in this action that the defendants, all police officers of the City of Chicago and acting under color of law, had caused personal injury to him in violation of his civil rights guaranteed by the Constitution and laws of the United States in that they had:

a. Found the plaintiff in an injured condition bleeding profusely from the right thigh and while in such a condition denied the plaintiff medical aid and care for approximately sixty (60) minutes.

b. Assaulted the plaintiff and beaten the plaintiff about the head, face, cheeks, chest, ribs, legs, thighs, and generally about his entire body with blackjacks, nightsticks, fists, feet and clubs causing the plaintiff to be severely injured.

c. Placed the plaintiff under arrest and . . . knowingly and falsely accuseed him of the violation of the statutes of the State of Illinois, to wit:

aggravated battery.

d. Placed the plaintiff in handcuffs and under arrest, forced him to walk on a wounded leg, continued to beat and harass and vilify the plaintiff and call him by filthy, obscene, and uncivil names and epithets.

e. While handcuffed . . . bodily thrown or propelled the plaintiff into a City of Chicago police vehicle headlong so that his face and head were caused to hit upon the floor and sides of the City of Chicago Police squadrol.

f. Locked the plaintiff in the Bridewell Hospital, a Police facility, in the City of Chicago for approximately forty-eight (48) hours during which time he was denied his freedom.

At the close of the plaintiff's evidence, the district judge directed the jury's verdict against the plaintiff and in favor of each of the defendants who were nonsupervisory policemen on the ground that the evidence failed to connect any of them directly with any of the improper acts alleged. Then, at the close of the evidence introduced by the remaining defendants, the district judge directed the jury's verdict against the plaintiff and in favor of all remaining defendants.

Conceptually, this appeal raises two questions: whether the district judge used the correct standard in deciding the motion for directed verdicts and whether the plaintiff was entitled to have this cause submitted to the jury against any defendant. For the reasons which follow, we reverse the granting of the directed verdicts as to defendants Moran, Pfeiffer and Finnin and remand the cause for a new trial.

I

The standard by which judges must determine whether to grant a directed verdict for a party to a lawsuit is well-settled. As Chief Justice John Marshall stated in Pawling v. United States, 4 Cranch 219, 220, 222, 8 U.S. 219, 220, 222, 2 L.Ed. 601 (1808), in discussing demurrers to the evidence, a historical antecedent to the motion for directed verdict: "The testimony is to be taken most strongly against the movant, and such conclusions as a jury might justifiably draw the court ought to draw." That standard of the view to be taken of the evidence has remained the same to the present. E. g., Delk v. St. Louis & S. F. R. R., 220 U.S. 580, 587, 31 S.Ct. 617, 55 L.Ed. 590 (1911); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). It has also been clear that, as the first Mr. Justice Harlan said, "Where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury. . . ." Phoenix Ins. Co. v. Doster, 106 U.S. 30, 32, 1 S.Ct. 18, 20, 27 L.Ed. 65 (1882); accord, Delk v. St. Louis & S. F. R. R., supra 220 U.S. at 587, 31 S.Ct. 617. We therefore direct our initial inquiry to whether the trial judge properly viewed the evidence in the light most favorable to the plaintiff and whether he refrained from weighing conflicting evidence as to which reasonable men could differ.

In granting the defendants' motion for a directed verdict as to the supervisory officers at the close of all the evidence, the trial judge made a lengthy statement of his reasons therefor. Among other things, he said the following:

Now I have heard and considered all of the evidence and I conclude as a matter of law that the plaintiff has not met the test of presenting believable evidence that establishes his charge by the burden of believable evidence in this case.

* * * * * *

The plaintiff\'s case rests upon his own testimony and that of one man by the name of Fields. Who is the plaintiff? A man convicted of a felony of such serious nature that he was sentenced to five years in the state penitentiary and who, from all the credible and unimpeached testimony, was a part of the conspiracy to extort $1,000 or control of the Little Egypt Tavern from the true owners along with a man by the name of Goode that you heard the evidence about. Who was plaintiff\'s star witness? Fields. Fields, the little mousey man, who became a vicious bully when he had a gun in his hand in the tavern. Those are his two witnesses. He did have one, Murph, who saw nothing and heard nothing, contrary to the plaintiff\'s interests, one of his drinking cronies who fell to the floor and admitted that he saw nothing of what really happened. His testimony is not worth two cents.

* * * * * *

Now let us look at the defendants\' evidence of what happened. Who are the witnesses of what happened? Mr. Patrick Giudice, a respected official of the United States Government with a stainless reputation. Who else? Officer Kenneth White who was home in bed after midnight, a man with a record without blemish except his own blood lost that night when he went far beyond the call of duty to protect the life and liberty and property of a citizen in the need of protection from a vicious mob of armed robbers.

We are convinced that the judge used an improper standard in granting the directed verdicts. It is clear that he viewed the evidence in the light most favorable to the defendants, who moved for the directed verdict, contrary to the proper standard. Indeed, the foregoing quotations demonstrate that he indulged in the function of weighing the relative credibility of the witnesses, which is forbidden to a judge determining a motion for directed verdict in a jury case. A comparison of his summary of the evidence with the record also reveals that he stated facts favorable to the defendant which had not been proved at trial but were merely asserted in pretrial statements of witnesses which were not admissible at trial.

II

We turn now to the question of whether the plaintiff presented a prima facie case requiring the submission of this cause to the jury against any of the defendants. The facts adduced at trial, viewed in the light most favorable to the plaintiff, were as follows.

The plaintiff, Thomas Byrd, went to the Little Egypt Tavern at about 4 p. m. on June 17, 1968 and stayed approximately an hour. He then left the Little Egypt, returning there at about 10:45 p.m., when he joined Pat Anderson and Clyde Shepard who were already there. Upon his return, he shot pool alone for a while and shot one game with Shepard. A friend of Byrd's, Vincent ("Murph") Michalik, arrived at about five or ten minutes after midnight of June 18 and observed Byrd playing at the pool table alone. Shortly after Michalik arrived, a man in civilian clothes entered the tavern with Gerlando Giudice, the owner, and his brother. The man, later revealed to be off-duty Chicago policeman Kenneth White, confronted Byrd at the pool table and demanded of him if he was giving the tavern owner trouble. Byrd answered negatively, stated, "I got no beef with you," and moved away from the pool table to the bar to join the Anderson woman.

Shortly thereafter, a man identified as Buddy Goode came in the front door...