Kerr v. City of Chicago

• Decision Date: 07 April 1970
• Docket Number: No. 17345.,17345.
• Citation: 424 F.2d 1134
• Parties: Harvey L. KERR, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, John Mohan, William Boyd, Wesley Broderson, George Poplaski, Edmund Dobbs and Bruce Thompson, Individually and as Police Officers of the City of Chicago, Jointly and Severally, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

424 F.2d 1134 (1970)

Harvey L. KERR, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, John Mohan, William Boyd, Wesley Broderson, George Poplaski, Edmund Dobbs and Bruce Thompson, Individually and as Police Officers of the City of Chicago, Jointly and Severally, Defendants-Appellees.

No. 17345.

United States Court of Appeals, Seventh Circuit.

March 11, 1970.

Rehearing Denied April 7, 1970.

COPYRIGHT MATERIAL OMITTED

Elmer Gertz, Chicago, Ill., for appellant.

Raymond F. Simon, Edmund Hatfield, Chicago, Ill., for appellees.

Before CUMMINGS and KERNER, Circuit Judges, and GRANT, District Judge.^*

KERNER, Circuit Judge.

This is a review of a civil action arising out of a Civil Rights complaint under 28 U.S.C. §§ 1331 and 1343(a), and 42 U.S.C. §§ 1983 and 1988, seeking both compensatory and punitive damages. The matter was tried before a jury and there was a finding for defendants.

Plaintiff, Harvey L. Kerr, alleges he was denied a fair trial. He states that the trial court improperly struck portions of the complaint; that the court improperly refused to allow introduction of testimony to prove the civil rights violations; that instructions were improperly refused; that he was not allowed to introduce testimony of the cost of legal services; and that the City of Chicago was improperly dismissed as a party defendant.

On June 19, 1963, Harvey Kerr, a black youth, age 17, alleges he was taken from his home at 5:30 a. m. by Chicago Police Officers. The officers, without warrants, informed his parents they did not believe the youth was involved in any crime but wished to interrogate him at the station, and they would return him in time to attend his regular school classes.

Kerr states he was placed in a police car and driven to another home where another youth was picked up, and both were taken to the Maxwell Street Police Station some distance from their homes. Kerr was questioned about a burglary and fire in an apartment. He denied any knowledge of the matter, and states he was both kicked and hit by an officer during the interrogation. Both of the youths, after several hours, were taken to Police Headquarters at 11th and State Streets where Kerr was required to take a polygraph examination. He was then returned to the Maxwell Street Station about 11:30 a. m. His mother, who had been searching for him at various stations, arrived at about the same time and was not allowed to speak to him.

Shortly after his return to the station, Kerr states he was told he would be allowed to use the washroom and to have food and water if he confessed. Several statements were read to him, after which he made three statements to a court reporter, each of which he signed. He was then allowed the use of facilities, provided food and water, and allowed to see his parents.

At about 4:00 p. m. on the same day, he was removed again to Police Headquarters and held without charge. The next morning, June 20, he was taken before a magistrate of the Boys Court, some 27 hours after he was removed from his home. Counsel appeared for him at the hearing and the magistrate bound Kerr over to the Cook County Grand Jury. He was indicted for murder and burglary. Not being allowed bond or bail, he was held for trial until December 13, 1963; at the conclusion of all evidence, the jury was unable to reach a verdict. Kerr continued to be held without any further action until December 2, 1964, when a nolle prosequi was entered.

Plaintiff alleges in his complaint that the defendants acted in "deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The complaint alleges the following violations of Kerr's civil rights: that for approximately 27 hours he was never brought before a judge, court or magistrate although in session; not charged with a crime; not permitted to make bail or bond; not permitted to contact or obtain counsel and advice; not informed of any formal charges; not informed of his privilege against self-incrimination; not informed of his right to the advice of counsel; and that for 14 hours he was not permitted to eat or use washroom facilities. Additionally, Kerr alleges that he was physically abused and the confession was not voluntarily obtained; and that the polygraph test was taken without his or his parents' consent. The complaint concludes that as a direct and proximate result of these acts of the defendants, the plaintiff suffered pain and injury and mental anguish and seeks judgment therefor.

The district court struck various allegations of the complaint and refused to admit evidence concerning the following alleged violations of his civil rights:

(a) That plaintiff was forced to submit to a lie detector test without the permission of his parents;

(b) That plaintiff was not allowed to see his parents during his detention although his mother was present at the police station in which he was being held;

(c) That for 27 hours of detention plaintiff was not:

(i) charged with a crime;

(ii) allowed to make bail or post bond;

(iii) permitted to contact an attorney;

(iv) informed of any formal charges placed against him;

(v) informed of his privilege against self-incrimination;

(vi) informed of his right to the advice of an attorney;

(d) That for 14 hours of detention plaintiff was not permitted to contact his family or his friends.

The theory of the court was that under the law at the time of arrest and detention of Harvey Kerr, these allegations, even if true, did not constitute a violation of rights, privileges or immunities secured by the Constitution and laws. Since the constitutional rights alleged to be violated were not declared until the Supreme Court's opinion in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966), and since these decisions were held not to be retroactive, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the district court held that these allegations failed to state a claim upon which relief could be granted. We disagree.

The defendants and the district court have misconstrued plaintiff's allegations of violation of his constitutional rights. Plaintiff claims that his rights were violated by the obtaining of an involuntary confession and the use of this confession to illegally detain the plaintiff for a period of 18 months. Cf. Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L.Ed.2d 1265 (1959). To consider whether the confession was voluntary, it is necessary for the jury to be allowed to consider all relevant facts regarding the circumstances under which a confession from the plaintiff was obtained. Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).

The court in Williams v. Peyton, 404 F.2d 528, 530-531 (4th Cir. 1968), said "more than twenty years ago, the Supreme Court cautioned that the record must be scrutinized with special care to determine whether a young defendant's confession is voluntary. Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 92 L.Ed. 224. Facts to be considered include the youth of the defendant, the length of his detention without counsel and any failure to send for his parents, or to bring him promptly before a judge of a juvenile court." In Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), the Supreme Court held a confession was coerced where a 15-year-old black youth was arrested and taken from his home at midnight and questioned by police for five hours without counsel being present.

Thus, the jury was entitled to hear the testimony surrounding all the events from the moment Kerr was taken from his home until his indictment by the Grand Jury. All of the acts of commission and omission — the totality of all the circumstances — are of great importance in determining whether plaintiff's confession was coerced in violation of his civil rights and thereby cognizable under 42 U.S.C. § 1983. We conclude that the district court erred in striking the allegations in the complaint and refusing to admit evidence as to those allegations.

INSTRUCTIONS

Various instructions offered by Kerr were refused by the court. The only instructions given to the jury concerning the law involved was a reading of the statute, 42 U.S.C. § 1983, and the reading of the Illinois statute requiring that a person in custody must be taken before the nearest magistrate without delay. We shall discuss the plaintiff's instructions which we have found to have been erroneously refused.

The court refused the following instruction:

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. The law is no respecter of persons; all persons stand equal before the law, and are to be dealt with as equals in a court of justice.

This instruction is taken haec verbae from Mathes, Jury Instructions and Forms for Federal Civil Cases, 28 F.R. D. 401, 414. In a civil rights action against policemen, such an instruction is necessary in order that the jury properly understands that people employed by the state do not stand in any higher station in the community. Without this instruction, the jury may give a greater weight to the testimony of the policemen and we think it was error to deny the giving of the instruction.

The court refused to give the following instructions:

In this case you are to determine whether the defendants, or any of them, violated the plaintiff\'s civil rights. Whether the plaintiff was guilty of a crime at the time of the occurrences testified to in this proceeding is entirely irrelevant and is not to be considered by you in any way in reaching your verdict in this case.

An indictment for a crime by a grand jury is nothing more than an accusation of such crime and is not to be considered as being any evidence that plaintiff committed any such crime.

...