Grisom v. Logan

• Decision Date: 20 October 1971
• Docket Number: Civ. No. 66-413-DWW.
• Citation: 334 F. Supp. 273
• Court: U.S. District Court — Central District of California
• Parties: Adeline GRISOM et al., Plaintiffs, v. Lee F. LOGAN et al., Defendants.

334 F. Supp. 273

Adeline GRISOM et al., Plaintiffs, v. Lee F. LOGAN et al., Defendants.

Civ. No. 66-413-DWW.

United States District Court, C. D. California.

October 20, 1971.

Stewart, Finkel & Manes, Los Angeles, Cal., for plaintiffs; Hugh R. Manes, Los Angeles, Cal., of counsel.

Roger Arnebergh, City Atty., Los Angeles, Cal., for defendants; George J. Franscell, Asst. City Atty., and Lowell M. Ramseyer, Deputy City Atty., of counsel.

OPINION

MacMAHON, District Judge.¹

Plaintiffs move for leave to appeal in forma pauperis from a judgment in favor of the defendants entered upon a jury verdict in this action based on the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, 1985 and 1986.

The three original claims asserted stem from the fatal shooting of eighteen-year old John Grisom by Los Angeles policemen in the spring of 1965. Plaintiffs are all heirs of John Grisom, and defendants are five police officers involved either in the shooting or the investigation of it.

The first claim was two-pronged seeking to recover damages for the wrongful death of John Grisom, alleging deprivation of his constitutional rights by defendants and also alleging a conspiracy to deprive plaintiffs of their rights as heirs to recover for the wrongful death. The claim for wrongful death was submitted to the jury which returned a verdict in favor of all defendants. The claim for conspiracy was dismissed by the court at the conclusion of the evidence.

The second claim, brought by plaintiff Andre Grisom, decedent's infant son, through his mother and guardian Barbara Tillis Henderson, sought to recover damages for violation of the infant's rights, alleging that the infant was wrongfully shot and injured on the night in question. This claim was also submitted to the jury.

The third claim, brought by plaintiff Adeline Grisom, mother of the decedent, sought to recover damages for deprivation of her civil rights by the defendants, alleging that they falsified testimony and suppressed evidence in order to cause Mrs. Grisom's arrest and prosecution for perjury at the inquest into her son's death. This claim was dismissed by the court at the conclusion of the plaintiffs' case.

Plaintiffs now move for leave to appeal in forma pauperis under Rule 24 of the Federal Rules of Appellate Procedure.

In order that the issues raised on appeal may be fully understood, it is necessary to review the events that led to the original claims. The incidents occurred on the night of April 10, 1965. At approximately 9:00 P.M., Adeline Grisom went to a neighbor's house to telephone the police. Mrs. Grisom told the police that her son, John, was acting strangely, and she requested their help in handling him. She said that he had grabbed the telephone from her as she tried to make a call in her own house. A short time later, Mrs. Grisom called the police again and told them that she was afraid to go back into her own house because her son had a gun.

As Mrs. Grisom waited on the street for help, she spotted the car driven by defendants Logan and Dotson, who were answering another call in the area. She flagged the police car down and told the officers about her son. There was dispute at trial about whether Mrs. Grisom told the officers that her son had a gun. The police said she did, but plaintiff claimed that she had merely told them that her son had "bought" a gun.

Officers Logan and Dotson accompanied Mrs. Grisom into the house, where they found John Grisom sitting on a sofa with his infant son in his arms. Logan said that as they talked he caught a glimpse of a gun the decedent was holding concealed under the baby's blanket. Asked if he had a gun, Grisom replied: "You don't know what I have." Plaintiffs admitted that decedent gave that answer but insisted that there was no blanket and no gun. The decedent's mother and brother said that they had seen the weapon tucked away in another room a short time earlier. Both admitted, however, that they did not so inform the police so as to allay their fears.

The officers managed to persuade Grisom, still holding his son, to accompany them into the yard in front of the house. There, Logan radioed for help, and the call was answered by defendants Simpson and McGuine. Logan testified that at one point he attempted to lunge and grab Grisom but missed and fell. As he fell, the decedent turned menacingly toward him and raised the hand holding the gun. Certain that the decedent was about to shoot him, Logan opened fire. Officer Simpson testified that when he heard shots and saw Logan fall, he thought his fellow officer had been hit. Seeing Grisom turn toward him, Simpson felt that his own life was in danger and he also fired. In all, eight bullets were fired. Four of them struck and killed Grisom.

In support of their first claim, plaintiffs testified that the decedent was unarmed and that the loaded gun found near the body was planted there as part of a conspiracy to fabricate self-defense in order to thwart an action for wrongful death. On the second claim, plaintiffs testified that the infant, Andre Grisom, was injured when a bullet grazed his foot. Defendants offered the testimony of Dr. Robert Small, who examined a cut on the infant's foot on the day after the shooting but was unable to say whether it was caused by a bullet. For the third claim, Adeline Grisom testified that the defendants falsified evidence in order to concoct charges against her for perjury at the coroner's inquest. The perjury charges were dropped after a preliminary hearing.

All three claims were brought under the Civil Rights Act as violations of the constitutional rights of the decedent and his heirs.

We turn now to plaintiffs' motion for leave to appeal in forma pauperis. An appeal in forma pauperis will not be permitted if it is so frivolous that it would not be allowed in the case of a non-indigent or is not taken in good faith. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). We find and conclude that not one of the issues raised here is arguable on law or on the basis of undisputed facts in the record. The appeal, therefore, is frivolous and is not taken in good faith.

There is also serious question as to whether one of the plaintiffs, Jimmie Grisom, Sr., is financially unable to pay the costs of an appeal. In his affidavit, Mr. Grisom said that his net salary was approximately $325.00 per month and that he received $150.00 per month in rental income on property he owns. His property has an approximate value of $15,000.00, and he also owns a 1963 automobile. Mr. Grisom makes monthly mortgage payments of $145.00. Though it is not necessary for a litigant to impoverish himself before he can appeal in forma pauperis, it is necessary that he show something more than mere hardship. Martin v. Gulf States Utilities Co., 221 F.Supp. 757 (W.D.La.1963). The facts shown in the affidavit of Mr. Grisom do not meet this test.

We come now to a discussion of the appeal on the merits. The first issue, tendered for appeal by Adeline Grisom, is that the trial court committed prejudicial error in dismissing at the end of plaintiffs' case her claim that the defendants violated her constitutional rights by falsely arresting and maliciously prosecuting her for perjury.

This claim was dismissed because the evidence clearly showed probable cause for bringing perjury charges against Adeline Grisom. A tape recording of her call to the police on the night of April 10, 1965 and the record of her testimony at the coroner's inquest were both received in evidence. These indisputable records showed that at the inquest Mrs. Grisom denied knowledge of her son's having a gun, while on the night in question she told police that he did have one. There was, therefore, strong evidence that some of her inquest testimony was false, and that alone provided sufficient probable cause to institute perjury charges against Mrs. Grisom and to arrest her. Probable cause exists when the facts and circumstances would warrant a reasonable man to believe that the person charged with the crime committed it. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). The fact that Mrs. Grisom was not subsequently tried for the crime does not eliminate the basis for making the arrest. Henry v. United States, supra.

Bringing this claim as a violation of civil rights rather than as a tort action for false arrest does not alter the situation. The defense of good faith and probable cause, which is available to police officers in a common law tort action, is also available in an action brought under 42 U.S.C. § 1983. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). In Strutt v. Upham, 440 F.2d 1236 (9th Cir. 1971), summary judgment in favor of a policeman in a civil rights action was affirmed when the court found that the policeman had ample probable cause and acted in good faith in arresting the plaintiff.

Plaintiffs' counsel argued at trial that Mrs. Grisom was charged with twelve counts of perjury, some of which were based only on the word of the police officers involved. This may be true, but at least one of the charges was based on unquestionable recorded evidence, and one incidence of perjury would be sufficient for conviction. Arena v. United States, 226 F.2d 227 (9th Cir. 1955), cert. denied, 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830 (1956).

Counsel further suggested that the perjury charge was deliberately concocted to discourage or prevent Mrs. Grisom from bringing her claim for wrongful death. There was no evidence of that, but even if the investigation into plaintiff's inquest testimony were proven to have been maliciously motivated, her civil rights would not have been violated if actual probable cause existed for the subsequent arrest. Beauregard v. Wingard, 362 F.2d 901 (9th Cir. 1966).

Mrs. Grisom's claim of false arrest and malicious prosecution was, thus, dismissed as a matter of law based on unquestionable...