Harris v. Harvey

Citation605 F.2d 330
Decision Date01 November 1979
Docket NumberNo. 78-2057,78-2057
Parties4 Fed. R. Evid. Serv. 781 Slyvester HARRIS, Plaintiff-Appellee, v. Richard G. HARVEY, Jr., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Rodolphe J. A. DeSeife, Glen Ellyn, Ill., for defendant-appellant.

John Sundquist, Milwaukee, Wis., amicus curiae.

Paul J. Gossens, Milwaukee, Wis., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and CAMPBELL, Senior District Judge. *

CUMMINGS, Circuit Judge.

This action was brought under the Civil Rights Act (42 U.S.C. § 1983) by a former Racine, Wisconsin, police lieutenant against a Racine County, Wisconsin, judge 1 and against Gerald Clickner, Racine County District Attorney. Plaintiff claimed that defendants' actions deprived him of Fourteenth Amendment due process and equal protection of the laws. We are setting out the allegations of the complaint in some detail (and in the same order as the pleader) because the jury found the key allegations sufficiently proved. 2

Plaintiff alleged that on January 8, 1974, Dale Vorlob, a paroled felon, was charged with felonious battery for attacking plaintiff with a pistol. On January 11, 1974, Vorlob told District Attorney Clickner that on January 10 plaintiff pistol-whipped Vorlob and threatened him with bodily harm if Vorlob testified against Harris at Vorlob's battery trial. Vorlob was convicted in a jury trial on March 27, 1974.

According to the complaint, Clickner communicated Vorlob's statements to Judge Harvey who urged Clickner to have a complaint sworn out against plaintiff, and on January 13, Clickner contacted the Racine Chief of Police to obtain help in the investigation of Vorlob's charges against plaintiff. However, after an internal investigation the Racine Police Department found Vorlob's charges baseless and therefore initiated no disciplinary proceeding against plaintiff. Nevertheless, on January 23, Clickner, "acting in his official capacity under color of law," maliciously authorized a petition to Judge Harvey for a secret John Doe investigation of the plaintiff pursuant to Wisconsin law. See Wis.Stat. § 968.26. 3

Plaintiff alleged that prior to January 9, 1974, Judge Harvey had told Racine Assistant Chief of Police Hagopian that he was going to get that "black bastard," the plaintiff. On numerous occasions prior to January 21, Judge Harvey "under color of law and beyond his jurisdiction" maliciously stated to many people that the plaintiff received preferential treatment and favors from the Racine Police Department because he was black.

On or before January 9, Judge Harvey supposedly "maliciously made racial remarks which were intended to reflect upon associates, friends and attorneys of Harris in an effort to have them disassociate themselves from Plaintiff Harris."

Commencing at 7:30 p. m. on January 29, Judge Harvey presided over the John Doe proceeding where assistant district attorneys authorized by Clickner "under color of law maliciously presented secret testimony against Plaintiff Harris." Plaintiff charged that during that proceeding, Judge Harvey "acted within his jurisdiction as county judge under color of law," maliciously threatening witnesses with prosecution and perjury because they would not incriminate plaintiff.

On January 30, Judge Harvey allegedly informed a newspaper reporter that he was conducting a John Doe hearing at which the plaintiff Vorlob swore that Harris beat and threatened him, and Harvey added that plaintiff would be charged with criminal violations.

On January 31, Vorlob signed three secret complaints against plaintiff, and Judge Harvey, "acting in his official capacity as judge under color of law," maliciously and without probable cause issued an arrest warrant for plaintiff for allegedly violating Wisconsin Statutes §§ 940.20 (misdemeanor: battery), 941.20 (misdemeanor: aiming and pointing firearm) and 943.30 (felony: threatening a witness). On the same date Judge Harvey read the warrants for the arrest of plaintiff over a radio station as well as a press release prepared by defendant Clickner, and maliciously informed the press that plaintiff refused to testify at the John Doe proceeding involving Vorlob's charges against Harris.

The complaint also charged that on February 4, Judge Harvey maliciously stated at plaintiff's initial court appearance that the other Racine County judges wished to be disqualified from trying plaintiff. On the same date defendant Harvey called for the dismissal of plaintiff from his police department job and attempted to have the Chief of Police suspend or fire him. On the next day Judge Harvey allegedly maliciously stated that plaintiff should be forced to take a lie detector test or be fired on the untrue ground that Vorlob had passed such a test.

Before plaintiff's trial on any of the criminal complaints, commencing on February 4, Judge Harvey in public and in the public media commented on the merits of the Vorlob-related criminal charges against plaintiff and publicly called him "a fixer, a briber, and a sycophant."

Supposedly Judge Harvey on March 11 maliciously submitted an affidavit in a legal proceeding making racial and derogatory remarks about plaintiff. 4 Both defendants allegedly met with officials of the Wisconsin Attorney General's office and threatened to accuse plaintiff of bribery, ticket-fixing, and other illegal activities in the public press unless the Attorney General would "do something about Harvey."

On February 4, plaintiff was suspended with pay by the Racine Police Department "after being pressured by Harvey," and on February 5 Judge Harvey maliciously accused the Chief of Police of engaging in the cover-up because plaintiff "was not ordered to take a lie detector test and because he was not suspended without pay."

On April 8, Judge Harvey publicly accused plaintiff of being on a paid vacation and termed his defense of the criminal charges against him to be "nonsense." On August 8, Judge Harvey maliciously accused plaintiff of unlawful conduct and publicly wrote that plaintiff was engaging in criminal conduct.

On August 15, Judge Harvey wrote the City Attorney that the police department should take disciplinary action against plaintiff or else Judge Harvey would commence criminal proceedings against him. On September 6, Judge Harvey wrote the City Attorney and accused him of whitewashing plaintiff's "documented" violation of Wisconsin Statute § 946.12(1) (misconduct in office). On November 22, Vorlob told plaintiff and various Racine officials that he did not know who beat him on January 10 and had so told defendant Clickner.

On February 11, 1975, the two misdemeanor complaints against Harris were dismissed by another judge "because of the manner in which Harvey conducted the John Doe." 5

On February 12, 1975, Judge Harvey wrote a derogatory letter to the judge who had dismissed the misdemeanor charges against the plaintiff and caused the letter to be read by the other Racine County judges.

On February 2, 1974 (Sic 1975), defendants commenced another secret John Doe (ticket-fixing) investigation of plaintiff and others, and Judge Harvey on numerous occasions made racial remarks about plaintiff to get him off the police force and arranged for the search of records of the police department and the court system in order to make a list of all cases against anyone named Harris in the past ten years.

On July 8, 1975, Judge Harvey wrote a letter to the Chief of Police accusing plaintiff of destroying police records and stating "that the Harris family appears to be immune from prosecution" and further indicating that he would release the information to the Racine Journal-Times.

As a result of the foregoing actions plaintiff alleged he was deprived of due process and equal protection of law under the Fourteenth Amendment. He sought injunctive relief, $250,000 in compensatory damages, $1,000,000 in punitive damages, and attorneys' fees.

On August 5, 1976, Judge Gordon dismissed the action against the District Attorney of Racine County because no violation of a federally protected or constitutional right was charged against him. 6 At the same time Judge Gordon denied Judge Harvey's motion for dismissal because a violation of Harris' Fourteenth Amendment right to equal protection of the laws was adequately alleged with respect to Judge Harvey and because his acts were allegedly racially motivated and committed outside of his jurisdiction. He also held that the complaint did properly allege that the offending acts were performed under color of state law. 419 F.Supp. 30. On June 30, 1977, Judge Gordon granted summary judgment for defendant as to the plaintiff's claim for an injunction on the grounds that the prospect of future criminal proceedings against Harris was too remote to present a case or controversy and that plaintiff had an adequate remedy at law. Holding that under Paul v. Davis, supra, plaintiff's claim that his job had become "unsatisfying" and "totally unbearable" did not sufficiently show a deprivation of a liberty interest, Judge Gordon dismissed the plaintiff's due process claim. However, the court denied defendant summary judgment with respect to plaintiff's equal protection claim because plaintiff's allegations that his loss of credit, injury to reputation, and deprivation of opportunities for advancement were inflicted through racially discriminatory treatment were sufficient to state an equal protection claim and the question of motivation was one for the jury. Finally, the district court granted summary judgment to Judge Harvey as to the allegation in paragraph 30 of the Complaint that on March 11 he had maliciously executed an affidavit in a legal proceeding and in the affidavit made racial and derogatory remarks about plaintiff. The reason for holding paragraph 30 to be...

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