Carter v. Rogers

• Decision Date: 26 November 1986
• Docket Number: No. 85-1915,85-1915
• Citation: 805 F.2d 1153
• Parties: Sammy CARTER and James Cox, Appellants, v. Jasper Greg ROGERS, Individually & in his capacity as the Sheriff of Dillon County; Billy Wayne Gaine, Individually & as a Deputy Sheriff of Dillon County; Andrew Graves, Indiv. & as a Deputy Sheriff of Dillon County; James Washington, Indiv. & as Deputy Sheriff of Dillon County; L.C. Richardson, Indiv. & in his cap. as the Sheriff of Marion County; Ann Earl Davis, As Admin. of the Estate of Gary Davis; V.D. Turbeville, Ind. & as a Deputy Sheriff of Marion County; United States Fidelity & Guaranty Co. & American Insurance Co., Defendants. and Bobby McClain, Individually & as a Deputy Sheriff of Dillon County; L.G. Winkler, Ind. and as a Deputy Sheriff of Marion County; Donald Ray Hayes, Ind. and as a Deputy Sheriff of Marion County; Richard McArthur and Katrina Carter, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1153

805 F.2d 1153

Sammy CARTER and James Cox, Appellants, v. Jasper Greg ROGERS, Individually & in his capacity as the Sheriff of Dillon County; Billy Wayne Gaine, Individually &amp as a Deputy Sheriff of Dillon County; Andrew Graves, Indiv & as a Deputy Sheriff of Dillon County; James Washington Indiv. & as Deputy Sheriff of Dillon County; L.C Richardson, Indiv. & in his cap. as the Sheriff of Marion County; Ann Earl Davis, As Admin. of the Estate of Gary Davis; V.D. Turbeville, Ind. & as a Deputy Sheriff of Marion County; United States Fidelity & Guaranty Co. & American Insurance Co., Defendants. and Bobby McClain, Individually & as a Deputy Sheriff of Dillon County; L.G. Winkler, Ind. and as a Deputy Sheriff of Marion County; Donald Ray Hayes, Ind. and as a Deputy Sheriff of Marion County; Richard McArthur and Katrina Carter, Appellees.

No. 85-1915.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1986.

Decided Nov. 26, 1986.

J. Edward Bell, III (Bell, Floyd, Belk & Jernigan, Florence, S.C., John D. Delgado, Furr & Delgado, Columbia, S.C., on brief), for appellants.

Mark W. Buyck, Jr. (Willcox, Hardee, McLeod, Buyck, Baker & Williams, Florence, S.C., on brief), and Robert L. Kilgo (Kilgo & Kilgo, Darlington, S.C., on brief), for appellees.

Before WINTER, Chief Judge, and WIDENER and CHAPMAN, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

Plaintiffs sued defendants, alleging a variety of causes of action arising out of their arrest for armed robbery and attempted armed robbery. Plaintiffs had been acquitted of the main criminal charges, though plaintiff Carter was convicted of illegal possession of a sawed-off shotgun. Among plaintiffs' alleged causes of action were claims that defendant McClain, the deputy sheriff, used excessive force in arresting plaintiff Carter in violation of his rights under federal law; that defendants Richard McArthur and Katrina Carter (no relation to plaintiff Carter) engaged in a civil conspiracy against plaintiffs in violation of state law; and that defendant McClain committed assault and battery on plaintiff Carter in violation of state law.

A jury found for McClain with respect to Carter's claim under 42 U.S.C. Sec. 1983 for the use of excessive force. It found for plaintiff Carter on the assault and battery count against defendant McClain and awarded Carter substantial compensatory and punitive damages. It also found for both plaintiffs against Katrina Carter and McArthur on the pendant state claim of civil conspiracy and awarded each plaintiff $35,000 in compensatory damages and also awarded Carter $15,000 in punitive damages. Carter moved, inter alia, for a judgment n.o.v., or in the alternative for a new trial, with regard to his claim of the use of excessive force, and defendants moved for judgments n.o.v., or in the alternative for a new trial, on the causes of action for which the jury found for plaintiffs. The district court denied Carter's motion, but it granted McClain a judgment n.o.v. on the assault claim and a conditional new trial. While it denied a judgment n.o.v. on the civil conspiracy claim and expressed the view that a new trial should be granted, it ruled that it lost pendent jurisdiction to retry this claim because it found that plaintiffs had no meritorious federal cause of action.

Plaintiffs appeal. ¹ We reverse and grant Carter a new trial on the claims for use of excessive force and assault and battery against McClain. We grant both plaintiffs a new trial on their pendent civil conspiracy claim.

I.

The facts are disputed, but, viewed in the light most favorable to plaintiffs, they present a bizarre case.

Plaintiffs were arrested under circumstances which indicated that they were engaged in the armed robbery of Mrs. Katrina Carter at a river house that she rented in the Fort Retch Community of Marion County, South Carolina, near a house rented by plaintiff Carter in the same community. The purported robbery was not a real one but was one staged by agreement between plaintiffs, Mrs. Carter and the defendant Richard McArthur. The idea to stage the robbery originated with McArthur, and its stated purpose was to convince certain drug dealers that Mrs. Carter legitimately lacked the funds to pay for a drug transaction in which she was involved and which she did not wish to complete. According to the plan, plaintiffs were to precede Mrs. Carter to her house on a designated night, and rob her of the money she would be carrying from that night's revenue at the club she operated.

In persuading plaintiffs to fake the robbery, McArthur and Mrs. Carter were in fact purposely manipulating plaintiffs into a position of apparent guilt. Mrs. Carter and McArthur had been carrying on an illicit affair for a considerable period of time. The fact of their relationship was well known to plaintiffs who were friends and acquaintances of long standing. In fact, McArthur and Mrs. Carter regularly used plaintiff Carter's house for their trysts. Plaintiffs suggest that McArthur and Mrs. Carter "set up" plaintiffs because McArthur believed that plaintiff Carter had told McArthur's wife about his affair with Mrs. Carter.

Prior to the night of the "robbery," the Sheriff of New Hanover County received an anonymous tip warning of an imminent armed robbery in the Dillon County area where Mrs. Carter's rented house was located. The Hanover County sheriff related the information to defendant McClain, the Deputy Sheriff of Dillon County who was stationed in the vicinity of Mrs. Carter's house. Indeed, McClain was subsequently told that the robbery would occur on August 14 and that plaintiff Sammy Carter and others would be involved in the robbery. As a result, a deputy accompanied Mrs. Carter that night when she returned from the club to her home, and McClain and other law enforcement officers were staked out at Mrs. Carter's house waiting for the robbery to occur.

Plaintiffs arrived at the Carter house as a result of a telephone call from McArthur earlier in the evening that the plan to fake the robbery should be put into operation that night. All of the agreed upon precautionary signals to indicate that plaintiffs should proceed had been given. When plaintiffs arrived at Mrs. Carter's house, McClain and his assistants were already concealed on the scene. When Mrs. Carter arrived, stopped her car, and proceeded into the house, plaintiffs approached her carrying firearms. As she hit plaintiff Carter with a briefcase containing the receipts from the club, McClain and the other law enforcement officers made their presence known. It is sharply disputed whether they identified themselves as law enforcement officers. In any event, plaintiff Cox stood still but plaintiff Carter, thinking that he was being accosted by the mythical drug dealers, started to flee.

Again there is a dispute whether Carter was ordered to halt, but as he continued running McClain fired at him, hitting him in the back below the waist. Carter fell to one knee but then he tried to arise and continue to run. McClain shot a second time, breaking Carter's leg, and thereafter Carter was apprehended. There is no dispute that he suffered grievous permanent injuries as a result of the shooting.

Where it is necessary to do so, we will state other facts in connection with the contention to which they relate.

The district court submitted Carter's claims for the excessive use of force and assault and battery to the jury on special interrogatories. Its instruction on the Sec. 1983 claim for the use of excessive force is set forth in the margin. ² The district court instructed the jury that the four factors to be considered in deciding the claim were: (a) the need for force, (b) the relationship between the need and the amount of force that was used, (c) the extent of injury inflicted, and (d) whether force was applied in an effort to maintain or restore discipline or employed maliciously and sadistically for the very purpose of causing harm. ³ With regard to this cause of action, the jury responded in the negative to the interrogatory "Do you find that Deputy Bobby McClain used excessive force, as that term has been defined for you in the court's instructions, in effecting the arrest of Sammy Carter during the early morning hours of August 15, 1982?"

The district court's instruction with respect to the claim for assault and battery is also set forth in the margin. ⁴ We note that the district court defined battery as an unlawful touching "done with the intention of bringing about a harmful or offensive conduct...." The jury was also told that if it found that McClain used "no more force than was reasonably necessary to take and keep the plaintiff Sammy Carter in custody, then there can be no assault and battery ..." The jury returned an affirmative answer to the interrogatory "Do you find that Deputy Bobby McClain committed an assault and/or a battery as those terms have been described to you in the court's instructions, on the person of Sammy Carter in effecting his arrest during the early morning hours of August 15, 1982?" After explaining that interrogatory to the jury, the district court cautioned that it could not award separate damages for both use of excessive force and assault and battery. The court instructed: "In other words, they are really one and the same. One cause of action, excessive force, is really based on federal law, and the assault and battery is based on state law. You cannot ... award two sets of damages."

In granting McClain's motion for judgment n.o.v. on the assault and battery claim, the district court ruled that "[u]nder South Carolina law a law enforcement officer has the legal right to use as much force as is reasonably necessary to apprehend an offender, effect an arrest and place him under custody [and] ... to use deadly force to arrest a person in the nighttime when the officer has just suspicion of the offender's design to commit a felony and the...