Jackson v. Wenzel, 64-C-235.
| Decision Date | 05 April 1968 |
| Docket Number | No. 64-C-235.,64-C-235. |
| Citation | 282 F. Supp. 357 |
| Parties | LeRoy JACKSON, a Minor, by his mother and next of friend, Maudice Jackson, Plaintiff, v. Donald WENZEL and George Jacobi, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Harvey L. McCormick, Milwaukee, Wis., for plaintiff.
John J. Fleming, City Atty., by John F. Kitzke and Thomas E. Hayes, Asst. City Attys., Milwaukee, Wis., for defendants.
The plaintiff, LeRoy Jackson, brought an action for damages against two police officers for allegedly depriving him of civil rights pursuant to the provisions of Title 42 United States Code, §§ 1983 and 1985. Defendants, Donald Wenzel and George Jacobi, filed an answer putting substantially all the material allegations of the plaintiff in dispute. On February 14, 1968, the matter was tried before this court without a jury.
The naming of Officer Donald Wenzel as a defendant proved to be a simple case of mistaken identity. The plaintiff himself identified Officer James Mamayek as "Wenzel," and several witnesses, some of them relying on police records, testified that Wenzel was not on duty on the night in question. Officer Wenzel also took the stand briefly to say that he was out of town fishing when the incidents complained of occurred. Since it was undisputed that Wenzel was not the correct target of plaintiff's complaint, this court granted defendant Wenzel's motion to dismiss the complaint against him at the end of trial and took the question of the verdict as to George Jacobi under advisement. This matter is before us now.
On April 12, 1964, the plaintiff, a Negro, was sixteen years old. On the witness stand he gave the following account of the events of that afternoon and evening.
At about 1:00 or 2:00 p. m., he arrived at the Century Theatre on North Third Street in Milwaukee, Wisconsin. He purchased a ticket at the booth, handed it to the usher, and went in to see the movie. After watching the movie for awhile, he left the main part of the theatre to go into the lobby and purchase popcorn. In the lobby, the usher asked him if he had a ticket stub, and the plaintiff said "No." The usher said that plaintiff would have to leave. When plaintiff showed no inclination to do so, the usher said that he would call the police. Shortly thereafter two policemen appeared, Officer Jacobi and "Officer Wenzel," who proved in fact to be Officer Mamayek.
The two officers told him that he would have to leave. When the plaintiff complained that he had paid for a ticket, they grabbed him and pulled him out onto Third Street. There, they threw him up on the front end of the squad car. According to the story, Officer Jacobi choked him and Officer Mamayek hit him with his club. Finally, they handcuffed him, put him in the back seat of the car, and took him to the Fifth District police station. On route, Officer Mamayek supposedly said,
The officers took plaintiff through the back door of the police station and put him, still handcuffed, in a small room with a desk and chairs. There, they questioned him. The gist of the questioning was about certain burglaries, car thefts, "and strongarm robberies." According to plaintiff, the officers would ask him if he knew anything about these affairs, and then, when he said he knew nothing, they struck him. Plaintiff said that the two officers at various times pulled his hair, hit him on the head with clubs, knocked him to the ground, and kicked him in the stomach, on the leg, and on the shoulder. At no time was he informed of the reasons for his arrest and detention.
Two other witnesses also appeared on behalf of LeRoy Jackson. Plaintiff's mother, Maudice Jackson, testified to picking her son up at the station, taking him home, and observing some bruises and scrapes. Dr. John Terry, a Milwaukee physician, testified that he examined the plaintiff on April 16, 1964, and found contusions and abrasions behind the left ear, abrasions on the left shoulder, and abrasions on the right lower leg.
Evidence presented by defendants consisted primarily of the testimony of several police officers, some of whom relied on official records, and of Franklin Herron, the usher at the Century Theatre. This evidence painted a somewhat different picture.
Franklin Herron did not see the plaintiff enter the lobby. He first saw plaintiff standing near the entranceway after hearing the door close. Since no one was in the lobby before he heard the door close, he assumed that plaintiff had just entered. Mr. Herron asked for his ticket or at least a ticket stub. When plaintiff failed to produce either and refused to leave, Herron called the police who arrived shortly thereafter.
Officer Jacobi entered first and talked to Mr. Herron while Officer Mamayek parked the squad car. After Mr. Herron explained the problem, Officer Jacobi walked over to plaintiff and asked for a ticket or ticket stub. At this time, Officer Jacobi smelled alcohol on plaintiff's breath and noted that his eyes were watery. When plaintiff failed to produce either, Officer Jacobi told him to leave the theatre, and when the plaintiff did not do so, Jacobi grabbed plaintiff's right arm with his left hand and began walking him toward the exit. About this time, Officer Mamayek seems to have been coming into the theatre. Plaintiff fought to elude Jacobi's grasp, grabbed the officer's lapel, ripped off his badge and a button, and apparently broke one of his fingers. With considerable difficulty, both officers succeeded in dragging plaintiff outside the theatre.
On the sidewalk, the battle continued. A large group of youths gathered, and plaintiff began crying out for help against the policemen. Ultimately, the officers succeeded in handcuffing plaintiff's hands behind his back and thrusting him in the back seat of the squad car. According to the officers, they did not strike plaintiff at this time, neither with clubs, nor fists, nor feet; and they denied making any derogatory or threatening remarks to plaintiff on the ride to the station. Indeed, they said that plaintiff called them...
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