Feemster v. Dehntjer, 80-2027
| Decision Date | 07 October 1981 |
| Docket Number | No. 80-2027,80-2027 |
| Citation | 661 F.2d 87 |
| Parties | Cleophus FEEMSTER, Appellant, v. Tony DEHNTJER, Ted Brand, Don Cooksey, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles Alan Seigel, H. Kent Munson, Stolar, Heitzmann, Eder, Seigel & Harris, Francis J. Hruby, St. Louis, Mo., for appellant.
Joseph R. Niemann, City Counselor, Judith A. Ronzio, Asst. City Counselor, St. Louis, Mo., for appellees.
Before BRIGHT, HENLEY and ARNOLD, Circuit Judges.
Cleophus Feemster brought this action for damages under 42 U.S.C. § 1983, claiming that the defendant police officers beat him without provocation after he had submitted to arrest. The jury returned a verdict for defendants. Plaintiff appeals, arguing that the trial court erred in giving certain instructions to the jury. We agree and reverse.
On the night of February 14, 1980, the plaintiff, his brother, Raymond Feemster, and his sister, Laura Williams, were in the basement apartment of their mother's home in St. Louis, Missouri (Tr.14). When police officers, including defendants, went to the apartment to execute a search warrant, a gunfight erupted. During the exchange of gunfire defendants Dehntjer and Cooksey were both injured, and the plaintiff was shot in the leg. After the initial gun battle, the police officers retreated and called for the firing of tear gas into the apartment (Tr.138, 264). Cleophus and Raymond Feemster and Laura Williams subsequently surrendered peacefully to the officers (Tr.145, 177, 207, 211).
Cleophus Feemster later sued defendants, claiming (1) that they broke into his mother's home without a valid warrant, and (2) that they beat him after he surrendered and refused to provide him proper medical attention. Count I of the amended complaint, which pleaded both these theories, was based on 42 U.S.C. § 1983. Count II alleged a common-law battery arising out of the same events. Cooksey and Dehntjer filed a counterclaim alleging that Feemster had shot and wounded them. They each asked for an award of one dollar in actual damages and $20,000 in punitive damages. The jury returned a verdict for the defendants on both counts of the complaint, and for the plaintiff on the counterclaim brought by defendants. Under the jury verdict, neither side recovered any damages.
Plaintiff's counsel began the trial by pressing both his theories of liability under Count I. In his opening statement to the jury, for example, he offered to prove that defendants entered the apartment forcibly and without a valid warrant, and that they immediately and unjustifiably opened fire on plaintiff and his family once they were inside the apartment (Tr.4). Plaintiff and his brother gave testimony to this effect (Tr.17, 18). Thus, plaintiff's trial strategy was initially to press both aspects of his § 1983 claim the theory based on defendants' pre-surrender conduct in allegedly breaking into the home without lawful authority, and the theory based on defendants' post-surrender conduct in allegedly beating the plaintiff after he had peacefully submitted to arrest.
As the proof developed, however, plaintiff's counsel apparently concluded that his chance for a verdict based on defendants' pre-surrender conduct was small. There was evidence that defendants in fact had a valid warrant, and that shots were fired on both sides after they entered the apartment. Counsel decided to abandon pre-surrender events as a basis of liability, though of course those events remained relevant to the counterclaim and plaintiff's defense against it. In his closing argument, counsel abandoned any affirmative claim based on pre-surrender events, and limited the complaint to the claim that defendants had beaten plaintiff after his surrender. Counsel said:
Let me explain to you just exactly what this case is all about and what this case is not about. Count I of my client's complaint against the three police officers that you see here is for deprivation, or taking away the civil rights of my client. I want to have one thing perfectly clear in your mind when you leave here. On Count I when we are talking about whether or not those police officers took away the civil rights of my client, we are talking only about those events which occurred after my client surrendered to the police. We are not talking about one thing that happened while they were still in the house ... (Tr.275).
Count II was similarly limited.
Count II of my client's complaint against these defendants is for what we call a common law battery, and let me read to you what I think the Judge will instruct you with respect to our Count II. I anticipate that the Judge will read to you this instruction of the law, and again, I would like to have you pay very careful attention to it when you hear it. Notice very carefully the words: 'Your verdict must be for plaintiff on Count II if you believe, first, defendant intentionally struck, hit, kicked or beat plaintiff after he had surrendered and offered no resistance, and second, defendants thereby caused plaintiff bodily harm' (Tr.278).
Counsel thereby clearly informed the jury that only the events which occurred after the surrender should be considered in connection with plaintiff's complaint. He made no claim based on pre-surrender events. They were mentioned only in connection with plaintiff's defense to the counterclaim:
MR. MUNSON (counsel for plaintiff): Ladies and gentlemen, let me just respond to a couple of things you have just heard.
Number one, you heard talk about a counterclaim. Now those events that took place in the house that night are relevant. You can consider them with respect to the counterclaim. But with respect to plaintiff's claim against those officers, those events started when they had surrendered peacefully. Just keep that in mind. Totally separate (Tr.298).
After the closing arguments, the court went into chambers to settle the jury instructions. Plaintiff's counsel objected to proposed instructions 34 and 36. The magistrate rejected his argument (Tr.305) and retained these instructions.
The disputed instructions read in pertinent part:
The defendants had the lawful authority, indeed the lawful duty under State law, to use such physical force as may have been reasonably necessary to preserve the public peace, prevent crime, arrest offenders, and execute search warrants, and to protect...
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