DeLoach v. Bevers

• Decision Date: 31 December 1990
• Docket Number: No. 88-2978,88-2978
• Citation: 922 F.2d 618
• Parties: Camille DeLOACH, Plaintiff-Appellee, v. Mitzi BEVERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 618

922 F.2d 618

Camille DeLOACH, Plaintiff-Appellee, v. Mitzi BEVERS, Defendant-Appellant.

No. 88-2978.

United States Court of Appeals Tenth Circuit.

Dec. 31, 1990.

Robert E. Manchester (Haven Tobias with him on the brief) of Cooper, Manchester, Hiltgen & Healy, Oklahoma City, Okl., for defendant-appellant.

Steven M. Angel (Carl Hughes with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Robert H. Henry, Atty. Gen. of Oklahoma, and Robert A. Nance, Asst. Atty. Gen., Chief, Federal Div., Oklahoma City, Okl., filed an amicus curiae brief on behalf of the State of Oklahoma in support of defendant-appellant.

James P. Manak, Associate Counsel, and Wayne W. Schmidt, Executive Director, Americans for Effective Law Enforcement, Inc., Chicago, Ill. (of counsel Fred E. Inbau, John Henry Wigmore, Professor of Law Emeritus, Northwestern University School of Law, Chicago, Ill.) filed an amicus curiae brief on behalf of Americans for Effective Law Enforcement, Inc., joined by The Intern. Ass'n of Chiefs of Police, Inc., The Nat. Dist. Attys. Ass'n, The Nat. Sheriffs Ass'n, and The Oklahoma Ass'n of Chiefs of Police in support of defendant-appellant.

Before LOGAN and BRORBY, Circuit Judges, and BRATTON, District Judge. ^*

LOGAN, Circuit Judge.

Defendant Mitzi Bevers ¹ appeals from judgment entered following a jury verdict in favor of plaintiff Camille DeLoach in her civil rights action under 42 U.S.C. Sec. 1983. Bevers asserts that the district court erred in failing to grant her motions in the alternative for judgment notwithstanding the verdict or a new trial.

This case arises out of the investigation into the death of eighteen-month-old Ryan Swift. Both of Ryan's parents had full-time jobs, and DeLoach was Ryan's daycare sitter. Ryan's father left him at DeLoach's home in the morning of September 11, 1985, and when Ryan's mother arrived to pick him up at 4:00 that afternoon, Ryan was comatose. He was taken to a hospital, where he died the next day from swelling of the brain caused by a severe blow to the head.

The attending neurologists who operated on Ryan were of the opinion that the blow to Ryan's head was so severe that it would have rendered him unconscious immediately, and, therefore, had to have occurred while Ryan was in DeLoach's care. The medical examiners who performed the autopsy on Ryan and another expert were of the opinion that the blow could have been delivered some time before September 11. The autopsy also revealed numerous bruises on Ryan consistent with persistent abuse.

Bevers was the police detective assigned to investigate Ryan's death. Some time in October 1985, she presented the case file of her investigation to Assistant District Attorney Donald Deason. Deason declined to proceed, believing the evidence was insufficient to convict. But in March 1987, at the urging of Douglas L. Polk, M.D., one of the attending neurologists, District Attorney Robert Macy decided to initiate prosecution of DeLoach for first degree murder. Bevers prepared an affidavit which induced a magistrate to issue a warrant for DeLoach's arrest. DeLoach was arrested and after a preliminary hearing was bound over for trial. After a jury was empaneled for DeLoach's trial, the government withdrew the charge.

DeLoach then filed this Sec. 1983 suit alleging that Bevers violated DeLoach's constitutional rights by retaliating against her for exercise of her right to retain counsel and by preparing an intentionally false and misleading affidavit which caused her arrest on first degree murder charges. The jury found for DeLoach on both counts, awarding compensatory damages of $150,000 and punitive damages of $75,000. We affirm.

I

DeLoach's claim of unconstitutional retaliation alleged that Bevers took various actions leading to DeLoach's arrest and to her being bound over for trial, and that Bevers did so in retaliation for DeLoach's decision to hire an attorney when she became a suspect in Ryan's death. "An act taken in retaliation for the exercise of a constitutionally protected right is actionable under Sec. 1983 even if the act, when taken for a different reason, would have been proper." Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir.1984); see also Norwell v. City of Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38 L.Ed.2d 170 (1973); Haynesworth v. Miller, 820 F.2d 1245, 1257 (D.C.Cir.1987); Losch v. Borough of Parkesburg, 736 F.2d 903, 907-08 (3d Cir.1984). The unlawful intent inherent in such a retaliatory action places it beyond the scope of a police officer's qualified immunity if the right retaliated against was clearly established. See Coen v. Runner, 854 F.2d 374, 378-79 (10th Cir.1988); Losch, 736 F.2d at 909-10.

Bevers contends that DeLoach had no Sixth Amendment right to counsel when she was merely a suspect in the criminal investigation. The right to retain and consult with an attorney, however, implicates not only the Sixth Amendment but also clearly established First Amendment rights of association and free speech. See generally United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). "Thus, while private parties must ordinarily pay their own legal fees, they have an undeniable right to retain counsel to ascertain their legal rights." Martin v. Lauer, 686 F.2d 24, 32 (D.C.Cir.1982) (footnote omitted).

There was sufficient evidence from which a reasonable jury could conclude that Bevers worked to cause DeLoach's arrest and prosecution at least partly in retaliation for DeLoach's decision to hire an attorney. Dennis DeLoach testified that after his wife hired an attorney, Bevers expressed displeasure, saying, "Well that's not being very cooperative," and thereafter appeared unhappy with DeLoach. II R. 99-100. A retired police officer acquainted with DeLoach testified that when he called on the night of DeLoach's arrest to ask if Bevers would allow DeLoach to surrender herself to authorities, Bevers replied, "Payback is hell, that's what she got for hiring a smart-ass lawyer." III R. 311. Bevers admitted saying "payback is hell" in reference to DeLoach's failure to "cooperate." IV R. 542, 610. At trial Bevers persisted in contending that DeLoach did not cooperate, but she never identified any such failure. She admitted that DeLoach answered all questions she asked in her interviews and voluntarily permitted a search of her house. The only evidence in the record supporting any failure to cooperate is DeLoach's attorney's request that the second Bever interview of DeLoach be at the DeLoach home rather than at the police station. See II R. 99-100. Apparently DeLoach, upon advice of counsel, also refused Bevers' request that she take a lie detector test. This was not before the jury, however. ²

Bevers argues that she cannot be held responsible for DeLoach's arrest and prosecution because there were many intervening actors making independent determinations to arrest and prosecute: the district attorney's office, the magistrate issuing the arrest warrant, and the judge at the preliminary hearing. But there was evidence from which the jury could believe that Bevers manipulated the process by mischaracterizing the evidence and by concealing the exculpatory opinion of a key medical expert. Some time in October 1985, Bevers interviewed John H. Stuemke, M.D., Medical Director of Outpatient Department and Emergency Services for Children's Hospital, an expert in child abuse who was often consulted by the district attorney's office and who had testified for the prosecution in many cases. ³ Dr. Stuemke's opinion was that it was much more likely that one of Ryan's parents had rendered the fatal blow than DeLoach, and that the blow could have and probably did occur twenty-four hours or more before the child became comatose. Yet, Bevers did not make an investigative report of this interview to be included in the investigation file for use by the district attorney's office, apparently the only interview she did not record. She also did not report Dr. Stuemke's opinion in her affidavit supporting the arrest warrant. Because Bevers admitted that she knew exculpatory evidence in her file was required to be made available to a defense attorney, see IV R. 557-58, the jury could believe her failure to make a record of this interview or to mention it later was deliberate. When Bevers testified at the preliminary hearing, she completely mischaracterized the substance of the interview and Dr. Stuemke's opinion, avoiding any exculpatory implications. When the district attorney's office consulted Dr. Stuemke shortly before DeLoach's trial, it was his opinion that convinced them to dismiss the charges against DeLoach. Indeed, Assistant District Attorney Deason testified that if Dr. Stuemke's opinion had been known before DeLoach's arrest, she would not have been arrested. II R. 169.

In Jones v. City of Chicago, 856 F.2d 985 (7th Cir.1988), the court stated:

"[A] prosecutor's decision to charge, a grand jury's decision to indict, a prosecutor's decision not to drop charges but to proceed to trial--none of these decisions will shield a police officer who deliberately supplied misleading information that influenced the decision.

... If police officers have been instrumental in the plaintiff's continued confinement or prosecution, they cannot escape liability by pointing to the decisions of prosecutors or grand jurors or magistrates to confine or prosecute.... They cannot hide behind the officials whom they have defrauded."

Id. at 994 (citations omitted). Likewise, Bevers cannot hide behind the decisions of others involved in DeLoach's arrest and prosecution if she deliberately conceals and mischaracterizes exculpatory evidence.

II

DeLoach alleged that Bevers violated her Fourth Amendment rights by causing her to be arrested pursuant to an intentionally false and misleading affidavit. Bevers...