Davis v. Mason County
| Decision Date | 06 June 1991 |
| Docket Number | Nos. 88-3947,88-4394 and 88-3951,s. 88-3947 |
| Citation | 927 F.2d 1473 |
| Parties | , 33 Fed. R. Evid. Serv. 825 John DAVIS; Wayne Broughton, a minor, through his guardian and mother Sharon Broughton; Doug Durbin; Ed Rodius, and Don Taylor, Plaintiffs-Appellees-Cross-Appellants, v. MASON COUNTY; Mason County Sheriff's Department; Pete Cribben, in his capacity as a Mason County Deputy Sheriff and as an individual; Jack Gardner, in his capacity as a Mason County Deputy Sheriff and as an individual; Susan Gardner, his wife, and the martial community composed thereof; Garry Ohlde, in his capacity as a Mason County Deputy Sheriff and as an individual; Doug Quantz, in his capacity as a Mason County Deputy Sheriff and as an individual, and; Ray Sowers, in his capacity as a Mason County Deputy Sheriff and as an individual, Defendants-Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Nancy K. McCoid, Merrick, Hofstedt and Lindsey, Seattle, Wash., for defendants-appellants.
Timothy K. Ford, Kathleen Wareham, MacDonald, Hoague & Bayless, Seattle, Wash., Robert Wilson-Hoss, Hoss & Wilson-Hoss, Shelton, Wash., for plaintiffs-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before WALLACE, Chief Judge, PREGERSON and NELSON, Circuit Judges.
Mason County, its sheriff and several deputies appeal from a jury verdict finding them liable under 42 U.S.C. Sec. 1983 for damages for excessive force used while arresting citizens in four separate incidents. We affirm the jury verdict and find municipal liability of Mason County and the Sheriff's Department.
Each of the plaintiffs-appellees' complaints arose out of traffic stops which resulted in arrests, beatings, and false charges that were later dropped. The incidents occurred within a nine-month period between June, 1985 and March, 1986.
Early on the morning of June 29, 1985 as Doug Durbin returned home from a local tavern, Deputy Ray Sowers followed him and waited outside of Durbin's home. Deputy Tom Furrer later arrived as backup. Sowers, flicking an electric stun gun on and off, ordered Durbin out of his house. Durbin, who complied, was arrested for drunk driving. After taking one step toward his house, the two deputies tackled Durbin and threw him to the ground. Though Durbin never attempted to resist, Sowers began to beat him on the back of his head with his fist. In the patrol car on the way to the jail Sowers slammed on the brakes, causing Durbin, who was handcuffed and thus defenseless, to smash into the screen with his face.
Durbin was charged with driving while intoxicated 1, resisting arrest and obstructing an officer. Yet after Durbin signed a "Release and Satisfaction" against Mason County, the charges against him were dismissed.
Deputy Doug Quantz pulled over Don Taylor as he was driving through Shelton on the afternoon of July 20, 1985, allegedly for driving too fast. Quantz ordered Taylor to spread-eagle against the patrol vehicle and proceeded to conduct a pat-down search. Under the guise of this search, Quantz twisted the skin on Taylor's arms and legs, struck him on the sides, hit him in the testicles, and slammed him against the side of the patrol car. Later, in the jail elevator, Quantz hit Taylor in the kidneys with his fist.
After signing a "Partial Covenant Not to Sue," promising not to bring charges against Mason County, the charges against Taylor, including reckless driving, obstructing an officer, and resisting arrest, were dropped.
John Davis and his fifteen year-old nephew, Wayne Broughton, were driving a loaded hay wagon drawn by a team of four horses on the afternoon of July 28, 1985. Because some cars were slowed behind the wagon, Deputy Jack Gardner came alongside the wagon in his patrol vehicle and, using his loudspeaker, ordered Davis to pull over. Davis lost control over the horses, who had been frightened by the noise of the loudspeaker. Gardner pulled in front of the wagon, took out his gun, pointed it at Davis and Broughton and threatened to shoot if they did not stop. As Davis got down from the wagon to attend to his horses, Gardner beat him on the legs with his nightstick and struck him on the head. He then knocked him down to the ground and continued to beat him. After Deputies Pete Cribben and Garry Ohlde arrived at the scene, all three hit him, kicked him, and shocked him with an electric stun gun. According to one witness, Davis "looked like he had been dipped in a bucket of blood" after the officers finished beating him.
Deputy Gardner's wife, who had been riding with him as a passenger and who was not an officer, ordered Broughton down from the wagon, and then took him by the arm and put him in the patrol car. After being questioned for an hour, Broughton was released.
Davis was arrested and charged with felony assault, resisting arrest and obstructing an officer. The misdemeanor charges were dismissed, and a jury, which found that Davis was acting in self-defense, acquitted him of the felony charge.
When Deputy Ray Sowers observed four young people talking between a car and a truck on the evening of March 15, 1986, he pulled over both vehicles. Sowers ordered Ed Rodius, a passenger in the truck, into the patrol car after he asked why they had been stopped. When Rodius refused to comply, Sowers jumped on Rodius, choked him, pulled on his hair, and then threw him to the ground and rubbed his face on the gravel of the parking lot.
Rodius was arrested and charged with possession of alcohol as a minor, purchasing liquor, and resisting arrest. Rodius was tried twice on the resisting arrest charge. The first trial resulted in a hung jury, and the second was declared a mistrial after the prosecution violated a motion in limine by referring to the case at bar in front of the jury. The Mason County Prosecutor's office eventually dismissed the charges.
In the present case, the jury returned verdicts against all the individual deputies and the County, awarding $528,000 in compensatory Punitive damages were awarded only against the individual deputies, not the County. The jury awarded $225,000 in punitive damages and $150,000 compensatory to Davis; $10,000 in punitive and $5,000 compensatory to Broughton; $25,000 in punitive and $5,000 compensatory to Durbin; $25,000 in punitive and $0 compensatory to Rodius; and $35,000 in punitive and $1,500 compensatory to Taylor. The district court awarded attorneys' fees, expenses, and costs to plaintiffs in the amount of $323,559.65.
Defendants-appellants timely appealed. This court has jurisdiction over the appeal under 28 U.S.C. Sec. 1291.
motion to sever.
Defendants-appellants (collectively "Mason County") argue that the district court erred in denying their motion to sever. This argument is based on two theories. First, they contend that the requirements for permissive joinder were not met. Second, they maintain that even if the requirements for permissive joinder were met, the motion to sever the plaintiffs' claims should have been granted because not doing so resulted in prejudice to the individual defendants.
Federal Rule of Civil Procedure 42(b) gives a district court broad discretion to order separate trials. A district court's decision regarding severance may be set aside only for abuse of discretion. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989). Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the district court made a clear error of judgment in its conclusion. Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir.1988).
Mason County did not raise the issue of whether the requirements for permissive joinder were met below. They are thus precluded from raising it now. This court will not "review an issue not raised below unless necessary to prevent manifest injustice." International Union of Bricklayers and Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985). This court will address the issue only if the proponent can point to "exceptional circumstances why the issue was not raised below." Id. (quoting Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 655-56 (9th Cir.1984) (per curiam)). Because Mason County does not show any reasons why they failed to raise the issue below, this court will not consider the issue.
Mason County moved before trial to sever the claims of the plaintiffs because, they argued, joinder would result in prejudice to the individual defendants. It is true that by trying the claims against the individual defendants with the claims against Mason County and the Sheriff's Department, evidence of the series of incidents of excessive force involving different police officers which would have been inadmissible against individual defendants not involved in the particular episode, were admissible against the County and the Sheriff's Department in order to show a pattern of misconduct.
Yet, while severing the defendants would have surely eliminated this prejudice, severing the plaintiffs would not have solved the problem. Even if each plaintiff had a separate trial, evidence of a pattern of misconduct would still have been admitted because each plaintiff (except Taylor who did not sue Mason County) presented a claim against at least one defendant and against the County. Since defendants requested severance of the plaintiffs' claims, the court below did not abuse its discretion in rejecting the motion.
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