Davis v. Freels

Citation583 F.2d 337
Decision Date25 August 1978
Docket NumberNo. 77-2221,77-2221
Parties3 Fed. R. Evid. Serv. 1663 Wallace DAVIS, Plaintiff-Appellant, v. Joseph FREELS, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Terrence K. Hegarty, Chicago, Ill., for plaintiff-appellant.

Peter Fitzpatrick, Chicago, Ill., for defendant-appellee.

Before SWYGERT, Circuit Judge, MILLER, Judge, * and TONE, Circuit Judge.

MILLER, Judge.

Plaintiff-appellant Wallace Davis appeals from the judgment of the district court, entered on the jury's verdict, that defendant-appellee Joseph Freels was not liable for violation of plaintiff's rights under 42 U.S.C. § 1983; 1 also from an order denying plaintiff's motion for judgment notwithstanding the verdict and from an order denying his motion for a new trial.

We reverse.

BACKGROUND

On March 8, 1976, at about 6:00 A.M., 2 Freels, a Chicago police officer for nine years, and his partner, Joseph Daube, while on patrol in a patrol wagon received a radio communication based on a citizen's complaint that the men in a blue Camaro with a black vinyl top (license plate number given) were wanted in connection with a shooting incident. While en route to the scene of the shooting (Freels driving), the two police officers observed a car answering the description drive by in front of them. (Plaintiff was, in fact, driving the car with a passenger, Winston Fontenot.) 3 The police officers followed the car for two blocks at approximately a half-block interval. From every indication Freels had, the men in the car were not aware that they were being followed. Davis drove the car into an alley approximately one hundred feet and turned into a lot adjacent to an auto body shop allegedly owned by him. Freels drove to the entrance to the lot, and both officers then got out and walked into the lot with their weapons drawn. Davis and Fontenot were still near the rear of their car. With Davis in the lead, they walked approximately twenty feet from their car to a point alongside a green Chevrolet parked nearby in the lot. Freels, who was approximately ten to fifteen feet away from the green Chevrolet, ordered Davis and Fontenot, who were facing parallel to the green car, to put their hands up and then, according to Fontenot, he and Davis were told: "Walk over to the car (the green Chevrolet) and put them (their hands) on the car." (This necessitated turning to their right.) Freels testified that Fontenot stopped, turned, and put his hands on the car, while Davis "stopped and looked at me and then he started turning . . . towards the car." Freels' testimony continued:

Q. As he started to turn, did you have either of his hands in view?

A. Before he started to turn, I had both his hands in view.

Q. As he started to turn . . . did you have either of his hands in view?

A. Yes, sir.

Q. Which hand?

A. His left hand.

Q. Did you have his right hand in view?

A. No, sir.

Q. All right, you told us he started to turn, and then what happened?

A. As he was turning, I saw a sudden motion with his right elbow in a backward direction.

. . .e w

Q. What did you do when you saw this sudden motion backward of his right elbow?

A. I fired my revolver.

Q. Then what happened?

A. . . . I shot Mr. Davis (in the back).

. . ..

Q. What happened after that?

A. I walked up to them. I searched Mr. Davis for a weapon; I found none. I stepped over and searched Mr. Fontenot for a weapon; I found none on him. Then I handcuffed Mr. Fontenot.

Later, over objection, Freels was asked: "Why did you fire your weapon on this morning at Wallace Davis?" He answered: "I believed he was going for a gun." He also testified that he "consider(ed) everybody armed, unless proven otherwise"; that Davis was "12 to 15 feet away" when he shot him; and that in his judgment there was no time to fire a warning shot. 4

Freels further testified as follows:

Q. Now, at the time that you saw the elbow right elbow move back suddenly, was his body in the turn or in the motion?

A. Yes, sir.

Q. And as Fontenot stood, where were his hands?

A. They were on the car, sir.

Q. On the roof of the car?

A. Yes, sir.

Q. And did Wallace (Davis) at any time put either hand on the roof of the car?

A. No, sir. ( 5

. . .was

Q. The purpose of ordering the two men to put their hands on top of the adjacent car was what?

A. To search them for a weapon, sir.

Q. And is that a standard procedure in dealing with suspects that might be armed?

A. Yes, sir.

The testimony of Daube, a police officer for fifteen years, included the following:

Q. When Wallace Davis moved approximately what angle was he when he was shot?

A. Forty-five degrees off the car.

Q. Did you see Wallace Davis' right elbow move immediately before he was shot?

A. Yes, sir.

Q. Did he move backwards?

A. Yes, sir.

In a deposition taken some three weeks earlier, Daube testified as follows:

Q At the point Wallace Davis was shot, were you afraid of being shot?

A Not really. Probably.

OPINION

Appellant Davis argues that, as a matter of law, there was no imminent danger, real or apparent, of death or great bodily harm to appellee Freels viewed from the surrounding circumstances, and the shooting of Davis was an unreasonable and excessive use of force. He cites Clark v. Ziedonis, 513 F.2d 79, 81 (7th Cir. 1975), for the following statement of the law The law has traditionally recognized that a person may employ deadly force against another, if such person reasonably believes such force necessary to protect a third person or oneself from imminent death or great bodily harm, without incurring civil liability for injury to the other.

He also cites Kerr v. City of Chicago, 424 F.2d 1134, 1141 (7th Cir. 1970), for the proposition that in determining whether the defendant

used more force on the plaintiff than would have appeared to a reasonable person, in like circumstances, to be necessary, in order to accomplish the lawful purposes intended . . . all the circumstances (must be considered) and the standard to be applied is that of the conduct of an ordinary prudent person under existing circumstances.

Citing 4 Am.Jur. Assault and Battery § 11 at 133 (1936), Davis contends

even if Appellee knew there was danger, i. e., had he actually seen an object that was apparently a gun, danger of death still would not be present until Davis clearly and plainly assaulted him.

However, this is not the law at least in this circuit, and we believe the following statement from 6 Am.Jur.2d Assault and Battery § 161 at 135 (1963), not only more accurately states the law but is clearly consistent with the statements quoted from Clark v. Ziedonis and Kerr v. City of Chicago, both Supra :

In a civil action for assault, the defendant's belief that the plaintiff intended to do him bodily harm cannot support a plea of self-defense unless it was such a belief as a reasonable person of average prudence would have entertained under similar circumstances. It is not necessary that the danger which gave rise to the belief actually existed; it is sufficient that the person resorting to self-defense at the time involved reasonably believed in the existence of such a danger, and such reasonable belief is sufficient even where it is mistaken. In forming such reasonable belief a person may act upon appearances. In other words, it is sufficient that the danger was reasonably apparent. (Footnotes omitted.)

Although the record reveals considerable conflicting testimony, 6 it contains sufficient evidence to support the jury's finding in favor of the defendant. Accordingly, we hold that the trial court did not err in denying Davis' motion for a judgment notwithstanding the verdict.

Appellant argues that the trial court erred in numerous evidentiary rulings which, considered singularly or cumulatively, constituted reversible error. Two of the complained of rulings were (1) admission of testimony that Freels had never previously fired his gun in the direction of a human being, and (2) admission of testimony from Officer Daube and Officer Foster, a black, that Freels always treated black people with equal respect. However, Freels points out that during his examination at the trial, Davis' counsel injected bigotry into the case by accusing Freels of shooting Davis because he was black. Freels argues that he was entitled to refute such a " damaging" and "highly prejudicial" charge, and "to fight fire with fire." United States v. Bessesen, 445 F.2d 463, 470 (7th Cir.), Cert. denied,404 U.S. 984, 92 S.Ct. 448, 30 L.Ed.2d 368 (1971). See also United States v. Regents of New Mexico School of Mines, 185 F.2d 389, 391 (10th Cir. 1950). We are satisfied that the trial court did not err in these two rulings.

On direct examination, appellant testified that he owned two auto repair shops and Wallaces Rib Shop and that he was going to one of the auto repair shops at the time he was shot by Freels. On cross-examination he was asked whether he had filed income tax returns for 1973, 1974, and 1975. Appellant's objection was overruled, and he contends that this was error. Appellee argues that the questioning about income tax returns was for the purpose of casting doubt on appellant's credibility regarding his ownership of the three businesses, and that failure to report any income from those businesses would be inconsistent with such claimed ownership. This theory of admissibility was not the one relied on at trial, where defendant's counsel justified the question as going to the plaintiff's general credibility as a witness. We offer the following observations because, as concluded Infra, the case must be retried. Whether appellant owned the three businesses was an issue injected into the case by appellant himself in an effort, apparently, to bolster his own credibility and to blunt the possible inference that he lacked any good reason to be where he was at the place and time of the incident. The issue being collateral, 3A J. Wigmore Evidence...

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