Haislah v. Walton, No. 79-3440
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | Before EDWARDS, Chief Judge, and KENNEDY and JONES; GEORGE CLIFTON EDWARDS, Jr.; CORNELIA G. KENNEDY |
| Citation | 676 F.2d 208 |
| Parties | Raymond HAISLAH, Plaintiff-Appellant, v. Albert WALTON and City of Cleveland and Cleveland Police Department, Defendants-Appellees. |
| Decision Date | 21 April 1982 |
| Docket Number | No. 79-3440 |
Page 208
v.
Albert WALTON and City of Cleveland and Cleveland Police
Department, Defendants-Appellees.
Sixth Circuit.
Decided April 21, 1982.
Page 209
Roger D. Heller, Christopher D. Stanley, Cleveland, Ohio, for plaintiff-appellant.
John S. Polito, Donald F. Black, Cleveland, Ohio, for defendants-appellees.
Before EDWARDS, Chief Judge, and KENNEDY and JONES, Circuit Judges.
GEORGE CLIFTON EDWARDS, Jr., Chief Judge.
This appeal involves an action brought by plaintiff Raymond Haislah under 42 U.S.C. § 1983 (1976) against a Cleveland police officer (Walton) and the City of Cleveland, its Police Department and its former Police Chief Adhrens alleging that defendants violated his constitutional rights by shooting him "in the mid portion of the back." At the time Haislah was fleeing after breaking away from arrest.
Section 1983 was adopted in 1871 1 and provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Page 210
I. STATEMENT OF FACTS
On October 15, 1977, four Cleveland Police Officers responded to a radio dispatch occasioned by a phone call near midnight from plaintiff's mother who told a police dispatcher that her husband and her son were in an argument involving "guns and knives." Four officers and two police cars responded to the residence concerned. The officers were met at the door by plaintiff Haislah who went out on the porch to talk with them. Two officers (Popovich and Musarra) went into the house to talk with plaintiff's mother and father while defendant Walton and his female partner, Lucas, remained on the porch with plaintiff.
Plaintiff was searched 2 and then was asked by defendant about the nature of the altercation between him and his father. When defendant's questions began to suggest that the Haislah home wasn't big enough for both plaintiff and his father, plaintiff, according to defendant, forcefully disagreed and punctuated his disagreement with a vulgarity. This prompted his arrest for disorderly conduct.
Plaintiff was taken into custody on the porch and led down the front steps, flanked by Officer Lucas and defendant. As the threesome neared the last step, plaintiff broke his right arm free of Lucas' grip and punched defendant in the eye. Free of both officers, plaintiff ran, and defendant took up immediate pursuit.
From this point on, plaintiff's testimony and defendant's diverge much more materially.
Plaintiff averred that he was shot while running away from defendant:
A. And then as I was running, I turned and looked once for a second, and then I kept on running, and then he shot at me and shot me.
Q. O.K.
When you say you "looked," what do you mean?
A. I turned my head.
Q. As you were running?
A. Yes.
Q. What did you see?
A. Then I see Walton. He was on the curb.
Q. What was he doing?
A. He had his revolver out, I guess.
Q. And you said then he shot you?
A. Yes.
Plaintiff denied having any article in his hand during this episode, but he did confirm that a bandage was on his hand.
Defendant asserted that the shooting was defensive. He testified that he had commanded plaintiff to " 'Halt' or 'Freeze.' " What happened next was related by defendant as follows:
Q. Did Mr. Haislah halt or freeze?
A. No, he did not. He continued to run.
Q. What did he do?
A. I am sorry-what is the question?
Q. What did he do as you pursued him?
A. There came a point in time when he stopped and made a half turn with his arm cocked above his head.
Q. At any time prior to the time that Mr. Haislah stopped and turned with his arm cocked over his head, did you draw your revolver?
A. No. Up until that happened, I did not have my revolver drawn.
Q. When did you draw it?
A. Upon observing him stopping and making a half turn.
Q. Did you observe anything else about the man?
A. It appeared that there was an object in his right hand.
Q. Did you draw your revolver at that time?
A. That is when I drew my revolver.
Page 211
Q. Did you know what the object in his hand was when you drew your revolver?
A. At that point I didn't know what it was. I assumed it was a knife by the way Mr. Haislah was posed and keeping in mind the fact that it had come across the radio that there were males with guns and knives.
Q. When you drew your revolver, was your vision still impaired?
A. When I drew my revolver, the vision in my left eye was impaired.
As a matter of fact, my left eye was just about closed at this time.
Q. Did you have any concern when you drew your revolver?
A. My concern mainly was for myself. I couldn't particularly rely upon my partner because, like I said, she was an inexperienced officer, and she was to follow my lead, and if I didn't tell her to do something, she would not do it, and I felt at the same time that Mr. Haislah, whatever he had in his hand, that he was able to inflict bodily harm, knowing that he had already been violent, and I drew my revolver, and there was no time to examine my options.
I couldn't see to my left, and there was nothing to my right, and I saw nothing I could run to, and I couldn't wait and see what he was going to do, and at that point, at this point I felt I had to make a quick decision, and also I said a prayer, something to the effect, "God, he has something in his hand, and I hope I make the right decision," and that is when I fired, and I fired with the express intent of wounding him.
I did not want to kill him, and if I did, it only meant a matter of raising my sights up a couple of inches. I could place the bullet through the heart or head.
My concern was stopping him from doing something to myself or my partner, so I aimed for the lower part of the body.
Q. Why didn't you wait and find out what was in Mr. Haislah's hand before pulling your revolver?
A. Had I waited to find out what was in his hand, I may not be here today, or my partner.
Q. Did there come a time when you found out what was in Mr. Haislah's hand?
A. After Mr. Haislah fell to the ground, and I ran to him, I discovered what he had in his hand was in fact a knife.
Q. I will ask the witness to examine that exhibit, and I will ask him-Officer Walton, are you able to identify Defendants' Exhibit Q?
A. Yes, sir.
Q. Would you identify it?
A. This is the knife that I placed my foot on and later picked up on the night of October 15, that the Defendant had had-that Mr. Haislah had.
On cross-examination, defendant Walton testified as follows:
Q. Officer, is it also so that you did not fire your weapon at Mr. Haislah because he was escaping your apprehension of him for that arrest that you had made?
A. Let me make sure I understand the question.
The question is, I didn't fire because he was running away from me?
Q. That is correct.
A. The answer to that is that I did not fire at him because he was running away from me, no.
Two doctors testified by deposition read to the jury concerning the location of the bullet wound. Dr. Malgieri, one of the physicians who performed surgery on plaintiff Walton after the shooting, indicated that the bullet had penetrated the area of plaintiff's lower back:
Page 212
Q. Were you able to ascertain, up to that point, where the entrance wound of the bullet was?
A. The entrance wound was in the back, on the right side.
Q. Doctor, do the records reflect where the wound was?
A. The records state that the wound was in the region of L5, S1.
Q. Can you tell us what that means?
A. That is the fifth lumbar vertebrae and first sacral vertebrae.
Q. And can you tell us approximately where that location is on the back, in layman's terms?
A. In layman's terms, it is around the beltline, I think is probably the best way to say it.
Q. This was on which side of the body?
A. The right side.
Dr. Mars, who examined plaintiff approximately a year and a half after the shooting, added the following:
Q. Doctor, were there any other objective findings based on your examination of 3/26/79?
A. The examination essentially was restricted to the neurologic system. As I told you, I did make an effort to determine the point of entry of the bullet.
Q. Did you determine that?
A. I noted on examination of Mr. Haislah's back that at the level L5 S1, just about in the midline, that there was an area of increased skin pigmentation. When asked, Mr. Haislah reported that was the entry point.
I attempted to feel for the bullet fragments in the anterior abdominal wall, but was not successful in finding it.
Q. Now, when you mentioned "midline" what do you mean by that?
A. In the mid portion of the back.
Q. Could you tell us approximately where L5 S1 was located on Mr. Haislah in regard to the waistline?
A. It would be approximately two to three inches below the waistline.
On this evidence, after receiving a lengthy charge from the District Judge, the jury found in favor of all of the defendants.
II. THE JURY INSTRUCTIONS
The District Judge's charge to the jury was lengthy and obviously carefully prepared. Nonetheless, we find it so strongly slanted toward the defendants as to require reversal for new trial. The following portions of the charge appear to us to misstate the law, both federal and state as to the limited circumstances under which a police officer may with impunity shoot a person in the back.
We recognize that as...
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Blackwell v. Sun Elec. Corp., No. 81-5517
...connection with the discharge."). In evaluating the adequacy of jury instructions, they must be taken as a whole. Haislah v. Walton, 676 F.2d 208, 212 (6th Cir.1982); Laugesen, 510 F.2d at 315; Tyree v. New York Central R.R., 382 F.2d 524, 527 (6th Cir.), cert. denied 389 U.S. 1014, 88......
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Carter v. City of Chattanooga, Tenn., Nos. 84-5247
...might prefer a different result. See, Garner v. Memphis Police Dep't, 600 F.2d 52, 54-55 (6th Cir.1979) (Garner ), and Haislah v. Walton, 676 F.2d 208, 214, n. 3, and 215 n. 4 (6th However much this Court might wish to interpret the relevant Sixth Circuit decisions in the manner suggested i......
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Carter v. City of Chattanooga, Tenn., Nos. 84-5247
...1247 (6th Cir.), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977); Garner I, 600 F.2d 52 (6th Cir.1979); Haislah v. Walton, 676 F.2d 208 (6th An examination of these cases reveals that no past precedent had established that Tennessee's fleeing felon statute was constitutional o......
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State v. White, No. 2013–0109.
...law as to what circumstances justified deadly force was therefore critical to a correct disposition of the case"); Haislah v. Walton, 676 F.2d 208, 213 (6th Cir.1982) (holding jury charge improper because it "repeatedly referr[ed] to force ‘necessary under the circumstances' witho......
-
Blackwell v. Sun Elec. Corp., No. 81-5517
...connection with the discharge."). In evaluating the adequacy of jury instructions, they must be taken as a whole. Haislah v. Walton, 676 F.2d 208, 212 (6th Cir.1982); Laugesen, 510 F.2d at 315; Tyree v. New York Central R.R., 382 F.2d 524, 527 (6th Cir.), cert. denied 389 U.S. 1014, 88......
-
Carter v. City of Chattanooga, Tenn., Nos. 84-5247
...might prefer a different result. See, Garner v. Memphis Police Dep't, 600 F.2d 52, 54-55 (6th Cir.1979) (Garner ), and Haislah v. Walton, 676 F.2d 208, 214, n. 3, and 215 n. 4 (6th However much this Court might wish to interpret the relevant Sixth Circuit decisions in the manner suggested i......
-
Carter v. City of Chattanooga, Tenn., Nos. 84-5247
...1247 (6th Cir.), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977); Garner I, 600 F.2d 52 (6th Cir.1979); Haislah v. Walton, 676 F.2d 208 (6th An examination of these cases reveals that no past precedent had established that Tennessee's fleeing felon statute was constitutional o......
-
State v. White, No. 2013–0109.
...law as to what circumstances justified deadly force was therefore critical to a correct disposition of the case"); Haislah v. Walton, 676 F.2d 208, 213 (6th Cir.1982) (holding jury charge improper because it "repeatedly referr[ed] to force ‘necessary under the circumstances' witho......