Hewitt v. City of Truth or Consequences, No. 82-2447
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | Before BARRETT, DOYLE and SEYMOUR; SEYMOUR; WILLIAM E. DOYLE |
| Citation | 758 F.2d 1375 |
| Parties | Martha HEWITT, Personal Representative of the Estate of Howard Hewitt, Deceased; and Martha Hewitt and Harry Hewitt, on their own behalf, Plaintiffs-Appellants, v. CITY OF TRUTH OR CONSEQUENCES; John Sawyer, individually and as Chief of Police for the City of Truth or Consequences; Elfigo Armijo, individually and as former Chief of Police for the City of Truth or Consequences; John Sarember, individually and as a police officer for the City of Truth or Consequences; Brack Callahan, individually and as a police officer for the City of Truth or Consequences; Henry Cruz, individually and as a Reserve Deputy Sheriff for the County of Sierra, New Mexico; Andy Garcia, individually and as a Mayor of the City of Truth or Consequences; Charlie Cox, individually and as Sheriff of Sierra County, New Mexico; and Board of County Commissioners for the County of Sierra, New Mexico, Defendants-Appellees. |
| Docket Number | No. 82-2447 |
| Decision Date | 04 April 1985 |
Page 1375
Howard Hewitt, Deceased; and Martha Hewitt and
Harry Hewitt, on their own behalf,
Plaintiffs-Appellants,
v.
CITY OF TRUTH OR CONSEQUENCES; John Sawyer, individually
and as Chief of Police for the City of Truth or
Consequences; Elfigo Armijo, individually and as former
Chief of Police for the City of Truth or Consequences; John
Sarember, individually and as a police officer for the City
of Truth or Consequences; Brack Callahan, individually and
as a police officer for the City of Truth or Consequences;
Henry Cruz, individually and as a Reserve Deputy Sheriff for
the County of Sierra, New Mexico; Andy Garcia, individually
and as a Mayor of the City of Truth or Consequences;
Charlie Cox, individually and as Sheriff of Sierra County,
New Mexico; and Board of County Commissioners for the
County of Sierra, New Mexico, Defendants-Appellees.
Tenth Circuit.
Page 1376
Ray Lewis Fuller of Southern New Mexico Legal Services, Las Cruces, N.M. (Morton S. Simon of Friedland, Simon, Lopez, Vigil & Nelson, Santa Fe, N.M., with him on the brief), for plaintiffs-appellants.
Rebecca A. Houston, Albuquerque, N.M. (Charles A. Pharris, Albuquerque, N.M., with her on the brief) of Keleher & McLeod, P.A., Albuquerque, N.M., for defendants-appellees, Sarember, Callahan, City of Truth or Consequences, Sawyer, Armijo, and Garcia.
John F. Nivala of Cherpelis & Nivala, P.A., Albuquerque, N.M. (J. Duke Thornton of Shaffer, Butt, Thornton & Baehr, Albuquerque, N.M., with him on the brief), for defendants-appellees, Cruz, Cox, and Sierra County Bd. of Com'rs.
Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
This civil rights action was brought by Martha Hewitt as personal representative of the estate of her son Howard Hewitt, and by Martha and her husband Harry Hewitt on their own behalf. 1 Plaintiff sought damages and injunctive relief pursuant to 42 U.S.C. Sec. 1983 (1982) against the City of Truth or Consequences, the Sierra County, New Mexico Board of County Commissioners, various City and County supervisory officials, City police officers John Sarember and Brack Callahan, and
Page 1377
Sierra County Reserve Deputy Sheriff Henry Cruz. Plaintiff alleged that Howard Hewitt's death during events following his arrest deprived Hewitt of his Fourth, Fifth, Eighth, 2 and Fourteenth Amendment rights.The issues for trial were bifurcated, and the only matter to be determined in the first phase was whether defendants Sarember, Callahan, and/or Cruz, who had been involved personally in the events surrounding Hewitt's death, had used excessive force. The jury found in favor of all three defendants by returning special verdicts in response to interrogatories. On appeal, plaintiff's primary contention is that the district court erred by ruling that police negligence could not be the basis for a separate claim under section 1983. Plaintiff argues that the court therefore erroneously refused to allow the admission of evidence or to instruct on alleged negligence. Plaintiff also asserts error regarding other evidentiary rulings and with respect to the jury instructions given. For the reasons set out below, we affirm.
I.
The tragic facts generating this suit, viewed most favorably to the jury verdict, see Rodgers v. Hyatt, 697 F.2d 899, 905 (10th Cir.1983), are as follows.
While on early morning patrol duty, Callahan received a report that the window of a bar had been broken and that a burglary was suspected. Upon arriving at the bar, Callahan discovered Hewitt in a tree, intoxicated and wearing only a pair of jeans and boots. Callahan arrested Hewitt, searched him, handcuffed his hands behind his back, and placed him in the back of his police car. A metal grid separated the front and back seats of the car, and the inside door handles had been removed.
Sarember, who was not on duty, was dispatched from his home to the bar to back up Callahan. Hewitt was already handcuffed and in the police car when Sarember arrived. After searching the bar, Sarember went to the police station to pick up a fingerprint kit and a camera.
Cruz, who was also off-duty, heard about the activity at the bar over the police radio and went there on his own initiative. Callahan asked Cruz to watch Hewitt, who was then in the police car, while Callahan searched the bar and arranged to have Hewitt's car towed. Cruz informed Callahan that Hewitt had managed to work his hands around in front of him. Callahan took Hewitt out of the car and frisked him again, this time finding a pistol grip in his front pocket. Callahan put the grip back in the pocket and adjusted Hewitt's handcuffs, although he did not recuff Hewitt with his hands behind his back. Callahan then put Hewitt back in the police car and locked the doors. Callahan testified at trial that he knew it was possible for someone in the back seat of the car to get out of the locked vehicle by reaching through a gap in the metal grid and manipulating the lock mechanism.
Callahan went back to the tow truck operator and was subsequently informed by Cruz that Hewitt had a gun. Callahan returned to the police car and saw Hewitt with a gun to his mouth. Hewitt threatened to shoot himself if Callahan did not let him go. Callahan tried unsuccessfully to reason with Hewitt, who managed to open the door and get out of the car.
Hewitt continued to threaten suicide and began to back across a street and toward an open field covered with scrub brush. Callahan drew his own gun and told Hewitt to drop his. Hewitt refused, and continued to back up while Callahan continued to advance. As Hewitt backed across the field, pointing the gun at himself and waving
Page 1378
it around, Sarember returned. Sarember testified that Hewitt shouted he was going to kill himself and that he, Sarember, had responded "go ahead." Rec., vol. VII, at 564. Sarember went back to his car, positioned it so that the headlights were shining on Hewitt, got out of the car with a shotgun, and chambered a round of ammunition.Sarember called to Hewitt that they were through playing games, or words to that effect, pointed the shotgun at him, and told him to drop the gun. Sarember testified that Hewitt then turned toward him in a crouching position, dropped the gun into a shooting posture, and aimed it at Sarember. Sarember fired the shotgun, killing Hewitt. The gun in Hewitt's possession, which had been hidden in his boot, was subsequently determined to be a nonshooting starter pistol.
II.
Plaintiff alleged at trial that Callahan, Cruz, and Sarember had unconstitutionally deprived Hewitt of his life without due process by their use of excessive force. The jury decided this claim in favor of defendants, finding by special verdicts that a person in Sarember's position could reasonably believe that Hewitt's starter pistol was a functional weapon, that Sarember himself believed the weapon was functional, and that Hewitt suddenly pointed the pistol at Sarember as if preparing to shoot Sarember immediately before Sarember shot him. Plaintiff does not argue on appeal that these findings are unsupported by the evidence.
Plaintiff also alleged below that Callahan, Cruz, and Sarember had negligently searched, handcuffed, and secured Hewitt in the police car, and had negligently or improperly handled Hewitt as a potential suicide. Plaintiff contended that this negligence proximately caused the use of deadly force and thus stated a separate claim for relief under section 1983. The trial court ruled that there was no evidence of gross negligence or wantonness, and that ordinary negligence cannot be the basis for recovery under section 1983 and the...
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...Martin v. Gentile, 849 F.2d 863, 869 (4th Cir.1988) (citations omitted). Defendants cite Hewitt v. City of Truth or Consequences, 758 F.2d 1375, 1379 (10th Cir.), cert. denied, 474 U.S. 844, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985), for the proposition that Plaintiff must show that the police u......
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