Coon v. Ledbetter

• Decision Date: 16 January 1986
• Docket Number: Nos. 83-4215,85-4048 and 85-4235,s. 83-4215
• Citation: 780 F.2d 1158
• Parties: Billy Dan COON, Racheal Elizabeth Coon, Who Sues by Her Guardian and Next Friend, Dana Coon, and Dana Coon, Plaintiffs-Appellees, Cross-Appellants, v. John LEDBETTER, Individually and In His Capacity as Sheriff of Jackson County, MS, et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1158

780 F.2d 1158

Billy Dan COON, Racheal Elizabeth Coon, Who Sues by Her Guardian and Next Friend, Dana Coon, and Dana Coon, Plaintiffs-Appellees, Cross-Appellants, v. John LEDBETTER, Individually and In His Capacity as Sheriff of Jackson County, MS, et al Defendants-Appellants, Cross-Appellees.

Nos. 83-4215, 85-4048 and 85-4235.

United States Court of Appeals, Fifth Circuit.

Jan. 16, 1986.

Watkins & Eager, Frank J. Hammond, III, John G. Corlew, Jackson, Miss., for defendants-appellants, cross-appellees.

Carol A. Cross, William Roberts Wilson, Jr., Robert W. Wilkinson, Pascagoula, Miss., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, DAVIS, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

I

When fighting led to shooting in a Mississippi tavern, Billy Dan Coon and his friend Buddy Nelson departed the scene. Coon said later that a man named Tanner had threatened him with a knife, stated that he knew where Coon lived, and warned that he would get him later. As Coon and Nelson drove away, apparently with dispatch, they hit another car, but quickly left that scene as well. Coon then left Nelson at Coon's father's house and went on to his own trailer home.

While sheriff's deputies were investigating the incident at the tavern, the hit-and-run accident was reported. Suspecting that Coon was involved, the deputies went to Coon's home but did not find him there. A deputy who knew Coon asked Coon's wife, Dana, to have Billy Dan call him. As the deputies were leaving, a car that looked like Coon's drove up from the woods behind the family's trailer home. The officers went to investigate.

Seeing the men approach and perhaps recalling Tanner's barroom threat, Coon moved toward a neighbor's trailer. Coon may not have been able to identify the men as peace officers; they were not using their warning lights, and it was too dark to make out their uniforms. The deputy who knew Coon called out, telling Coon his name and that he wanted to talk to him. Coon's wife also called out, telling him to come up and speak with the men. But Coon continued moving around, first toward the neighbor's place, and then to his own trailer, where he armed himself with a shotgun.

One deputy, spotting Coon with the gun, shouted a warning to the others. Coon then fired at least two shots. Coon claims that these were warning shots fired into the air, while the deputies claim that the shots were fired in their general direction. The officers took cover. Coon shouted a warning to the men to "get off my place," ran around the front of his trailer, and was shot by one of the officers. He struggled inside and at least one deputy fired into the trailer. Coon then came outside and collapsed.

Coon was taken to the hospital and treated for his wound. His wife has since received therapy for emotional problems. Their daughter Racheal, who was in the trailer during the shootout and was four years old at the time, experienced sleeplessness and nightmares afterward.

Criminal charges of aggravated assault, for shooting at Deputy Herrington, were filed against Coon; following a mistrial, he entered a guilty plea to the reduced charge of simple assault. Coon was also indicted for shooting at two of the other deputies, but was never prosecuted; an order of nolle prosequi was eventually entered in those cases.

After the criminal cases were concluded, Coon sued Sheriff Ledbetter and deputies Gussberry, Cushman, Herrington, Thompson, Parker, and Carter in their individual and official capacities, Jackson County, and United States Fidelity & Guaranty Company, the firm that bonded the sheriff. Coon asserted claims under 42 U.S.C. Sec. 1983 and under a state malicious prosecution law. The supervisors of Jackson County were at one point added as defendants; after additional discovery, however, the parties stipulated to a dismissal of these defendants with prejudice. Following a jury trial, directed verdicts were entered in favor of Jackson County and U.S.F. & G.; directed verdicts, which are not appealed from, were also entered in favor of three of the deputies. The jury returned a verdict against the sheriff and deputies Cushman, Gussberry, and Herrington, awarding Coon $50,000.00, his wife $115,243.86, and his daughter $13,775.00. Motions for a new trial or, in the alternative, for judgment notwithstanding the verdict, were denied. Judgment on the verdict was entered and all parties appeal.

II

The numerous assigned errors fall into three main categories. First, the defendants argue that Coon's wife and daughter proved no deprivation of their own constitutional rights. Second, the Coons contend that because the acts of the deputies represented county policy, the district court improperly granted a directed verdict in favor of Jackson County; the Coons also argue that Sheriff Ledbetter and his bonding company are liable for the acts of his deputies under Mississippi law. Third, defendants argue that the court's charge to the jury was hopelessly confusing because it failed to distinguish between an ordinary suit for negligence and a claimed deprivation of constitutional right; because it misstated the deputies "defense" of good faith; and because the verdict form did not allow the jury to focus on each defendant separately.

Dana and Racheal Coon, like all persons who claim a deprivation of constitutional rights, were required to prove some violation of their personal rights. See Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), (right to bring action under civil rights act is personal in nature and does not accrue to a relative), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); English v. Powell, 592 F.2d 727 (4th Cir.1979) (wife had no standing to maintain action arising from husband's demotion on job); Shaw v. Garrison, 545 F.2d 980, 983 n. 4 (5th Cir.1977), rev'd on other grounds sub nom. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); TOPIC v. Circle Realty Co., 532 F.2d 1273 (9th Cir.) (litigants have no standing to assert civil rights of third parties injured by unlawful conduct), cert. denied, 429 U.S. 859, 97 S.Ct. 160, 50 L.Ed.2d 137 (1976); Spence v. Staras, 507 F.2d 554 (7th Cir.1974); Hall v. Wooten, 506 F.2d 564 (6th Cir.1974); O'Malley v. Brierley, 477 F.2d 785, 789 (3d Cir.1973); Brown v. Board of Trustees, 187 F.2d 20 (5th Cir.1951). Whatever be their right as bystanders to recover under state tort law, we are persuaded that Racheal made the proof of personal loss required for a constitutional claim, but that Dana did not. There was no evidence that any act of the deputies was directed toward Dana; she was not directly involved in the shooting and was with the deputies when it occurred. Racheal, however, was in the trailer. There was evidence that Coon staggered into his trailer and while he was there attempted to protect Racheal from the gunfire, and there was evidence that deputy Gussberry fired a round of heavy buckshot into the trailer at that time. Further, the jury could have concluded that the deputies knew or should have known that other persons besides Billy Dan Coon were in the trailer, so that the requisite level of reckless conduct, as we will discuss, was met.

We are persuaded that the district court correctly directed a verdict in favor of Jackson County. There was no evidence that Sheriff Ledbetter, or any other person who could be characterized as a policymaking official, was personally involved in the shooting at Coon's home. See Bennett v. City of Slidell, 735 F.2d 861 (5th Cir.1984) (en banc) (denying reh'g (with opinion)), cert. denied, --- U.S. ----, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). County liability could therefore be found only if there was "[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy...." Id., 735 F.2d at 862.

At the time of trial, Ledbetter had been sheriff for seven years. During his tenure there had been only three shooting incidents besides this one. Coon argues that his shooting was the product of Sheriff Ledbetter's "tacit encouragement," evidenced by the sheriff's statement that he would "rather be tried by twelve than carried by six" and that was how he wanted his men to be. Ledbetter's use of this time-worn aphorism is too slender a reed to support the conclusion that he encouraged his deputies to use excessive force. Perhaps the adage only reflects a harsh reality that policemen perceive in their lives: whatever his split second decision in a life threatening street confrontation, an officer will be second-guessed. More to our point, the statement does not necessarily advocate or excuse the use of excessive force. Sheriff Ledbetter denied that such a meaning was either intended or in context was so understood. This denial was not rebutted by contrary evidence, and it follows that Jackson County could not be held liable on the basis of the sheriff's statement.

Pointing to the recent decision in Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.1985), plaintiffs argue that Jackson County can be held liable because Sheriff Ledbetter ratified the deputies' conduct after the event. Grandstaff, however, does not stand for the broad proposition that if a policymaker defends his subordinates and if those subordinates are later found to have broken the law, then the illegal behavior can be assumed to have resulted from an official policy. Rather, Grandstaff affirmed a judgment against a Texas city on a highly peculiar set of facts: in response to a minor traffic violation, three patrol cars engaged in a high speed chase during which they fired wildly at the suspected misdemeanant; the object of this chase took refuge on an innocent person's...