Foley v. City of Lowell, Mass.

• Decision Date: 02 August 1991
• Docket Number: Nos. 91-1016,91-1044,s. 91-1016
• Parties: 34 Fed. R. Evid. Serv. 486 Michael J. FOLEY, Plaintiff, Appellee, v. CITY OF LOWELL, MASSACHUSETTS, Defendant, Appellant. Michael J. FOLEY, Plaintiff, Appellant, v. CITY OF LOWELL, MASSACHUSETTS, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 10

948 F.2d 10

34 Fed. R. Evid. Serv. 486

Michael J. FOLEY, Plaintiff, Appellee, v. CITY OF LOWELL, MASSACHUSETTS, Defendant, Appellant.

Michael J. FOLEY, Plaintiff, Appellant, v. CITY OF LOWELL, MASSACHUSETTS, Defendant, Appellee.

Nos. 91-1016, 91-1044.

United States Court of Appeals, First Circuit.

Heard Aug. 2, 1991.

Decided Oct. 23, 1991.

Robert LeRoux Hernandez, Malden, Mass., for plaintiff, appellee.

Patricia Sullivan Talty, Asst. City Sol., Lowell, Mass., for defendant, appellant.

Before TORRUELLA and SELYA, Circuit Judges, and HILL, ^* Senior Circuit Judge.

SELYA, Circuit Judge.

Invoking 42 U.S.C. § 1983 and also asserting pendent state-law claims, Michael J. Foley sued the City of Lowell and certain members of its police force in the United States District Court for the District of Massachusetts. Foley alleged in substance that his rights under the fourteenth amendment were violated when he was brutally beaten by police officers; that the City inadequately trained and supervised its constabulary; and that the City allowed the Lowell Police Department (Department) to operate under constitutionally offensive policies. After a ten-day trial, the jury returned a verdict against the City and one officer, Lamothe. ¹ A judgment was entered on June 30, 1989. Several orders were thereafter signed, some of which purported to alter or modify the judgment. An amended judgment was entered on December 6, 1990. After several false starts, cross-appeals have been perfected.

The issues on appeal include whether the trial court (1) improperly admitted into evidence a particularly vile incident of subsequent police brutality, capped by an episode of unsolicited micturition, (2) erred in calculating prejudgment interest, (3) awarded appropriate counsel fees to the prevailing plaintiff, and (4) should have allowed postjudgment interest on the award of counsel fees. The last point requires that we decide a matter of first impression in this circuit.

Having captured the essence of this catamount of a case, we affirm the verdict. At the same time, we direct that the computation of prejudgment interest be corrected, that the second of the two fee awards made by the district court be modified slightly, and that postjudgment interest attach to the principal fee award.

I. BACKGROUND

The plaintiff's parents owned and operated a variety store in Lowell. In the wee hours of February 5, 1983, the plaintiff discovered that the store had been vandalized. He called the police. Two or three officers came to the store, conducted an inspection, and left. Shortly thereafter, plaintiff's brothers spotted two young men in the vicinity. Suspecting that they had snared the culprits, the brothers brought the men inside the store and contacted the police again. This time, several members of the Department responded. Lamothe was one of them. The officers spoke with the detainees and concluded that there was no probable cause for arrest. The men were released.

For the Foleys, this was one straw too many. Various officers testified that the plaintiff's father, Thomas Foley, became indignant when the men were released. He approached Lamothe and berated him for freeing the supposed perpetrators. Lamothe responded in kind, becoming equally enraged. He reportedly accosted the plaintiff's father and yelled at him for trying to take the law into his own hands. Withal, Lamothe kept bumping Thomas Foley with his chest in a hostile and aggressive fashion. The plaintiff soon interceded, wedging himself between his father and Lamothe.

The testimony was sharply conflicted as to what happened next. The officers' version was that Lamothe and the plaintiff struggled, wrestling each other to the ground. Finally, Lamothe was able to cuff one of plaintiff's hands. Another officer arrived momentarily, and the two of them secured the other hand. Once handcuffed, Foley was led to a police car and held there. No blows were ever inflicted upon him, although he resisted throughout.

The plaintiff's version was markedly different. He said that Lamothe grabbed him by the neck and repeatedly struck him in the face. His glasses were broken. He was then thrown to the ground. A group of officers hauled the plaintiff to his feet and took him to a police cruiser. There, his face was slammed into the side of the car. He fell to the ground and was kicked several times. Someone pulled him up by his hair and Lamothe struck him again. The pummelling continued in this fashion for an indeterminate interval before the plaintiff was handcuffed.

The rest of the story is undisputed. Foley was transported to headquarters by police van. His sister procured his release on bail and took him to a nearby hospital. Foley's face was black and blue. He was bleeding from his right ear. The urine sample he provided at the hospital had blood in it. Moreover, he was unable to speak; his voice did not return for two weeks.

II. THE EVIDENTIARY ISSUE

At trial, the plaintiff endeavored to prove that his beating at the hands of Lamothe and his cohorts was not an isolated event, but rather, the product of a municipal policy and custom of studied indifference to the violation of constitutional rights by police officers. To this end, Foley presented a series of witnesses who laid various atrocities at the Department's doorstep. ² The testimony suggested that the Department routinely ignored complaints about the use of excessive force.

In the course of this parade, the district court allowed one Mark Finnegan to testify. Finnegan claimed to have been savaged by Lamothe in August 1983, some six months after Foley and Lamothe had crossed swords. According to Finnegan, Lowell police officers had arrested him and placed him in protective custody. During that time, Lamothe and others handcuffed him, hit him, kicked him, and threw him upside down into a trash barrel. While Finnegan was in the ashcan, Lamothe urinated on him.

Later in the trial, Finnegan's account was confirmed in material part by the testimony of Police Superintendent Sheehan, Lamothe's supervisor. Sheehan, who testified by deposition, explained that Finnegan's father was a former city solicitor. Hence, Sheehan gave the matter prompt and personal attention once the elder Finnegan came to him and complained. Following Sheehan's investigation of the incident, he suspended Lamothe for four days in the fall of 1983. The plaintiff argued that so mild a reaction to so odious a performance, especially when coupled with the fact that, a year later, Sheehan promoted Lamothe to the rank of lieutenant, amply evinced a municipal policy of indifference to police brutality.

The City offers a salmagundi of reasons to support its contention that the Finnegan testimony should have been excluded: (i) the evidence was irrelevant because nothing about the Finnegan incident helped to establish the existence of a municipal policy some six months earlier; (ii) even if relevant, the incident was so outrageous as to prejudice the jury unduly; (iii) the plaintiff should have been made to minimize the inflammatory effect of the testimony by offering in its stead a police report of the incident; and (iv) the testimony was improper because the incident itself was the subject of independent litigation and settlement. This asseverational array may sound plenteous, but it is Barmecidal.

A. Relevancy and Probative Value.

We do not believe that the probative value of the testimony can seriously be disputed. For the plaintiff to have prevailed on his claim of municipal liability under 42 U.S.C. § 1983, he had to establish both that (1) there existed a municipal custom or policy of deliberate indifference to the commission of constitutional violations by police officers; and (2) this custom or policy was the cause of, and moving force behind, the particular constitutional deprivation of which he was complaining. See Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.) (collecting relevant Supreme Court cases), cert. denied, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989). Contrary to the City's exhortation that the date an incident occurs marks the outside date for evidence-gathering on such an issue, we think that actions taken subsequent to an event are admissible if, and to the extent that, they provide reliable insight into the policy in force at the time of the incident. See, e.g., Bordanaro, 871 F.2d at 1167 ("Post-event evidence can shed some light on what policies existed in the city on the date of an alleged deprivation of constitutional right."). ³ We do not mean to imply that all post-event evidence is automatically admissible in a section 1983 "custom or policy" case. Rather, the question that must be asked when post-event evidence is proffered is whether the evidence sufficiently relates to the central occurrence. See Sherrod v. Berry, 827 F.2d 195, 204-05 (7th Cir.1987) (admission of evidence regarding separate suit brought against police officer upheld even though incident giving rise to separate suit occurred one month after the event upon which current litigation was based), vacated on other grounds, 835 F.2d 1222 (7th Cir.), remanded for new trial, 856 F.2d 802 (7th Cir.1988) (en banc); see also Fed.R.Evid. 401 (evidence is relevant so long as it "ha[s] any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"); cf. United States v. Mena, 933 F.2d 19, 25 n. 5 (1st Cir.1991) ("events that occur after an offense has been perpetrated may be relevant in an assessment of what transpired at the earlier time").

The district court's determination of relatedness in this context is reviewable only for abuse of discretion, gauged in light of the record as a whole. See generally Veranda Beach Club Limited Partnership v. Western Surety Co., 936 F.2d 1364, 1373 (1st Cir.1991) ("In the federal system, a trial court has appreciable...