Lang v. Cone, 76-1096

• Decision Date: 19 October 1976
• Docket Number: No. 76-1096,76-1096
• Citation: 542 F.2d 751
• Parties: A. C. LANG and Curtis Lang, Appellants, v. Marshall CONE and Tom Magness, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 751

542 F.2d 751

A. C. LANG and Curtis Lang, Appellants, v.Marshall CONE and Tom Magness, Appellees.

No. 76-1096.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 15, 1976.

Decided Oct. 19, 1976.

George Howard, Jr., Pine Bluff, Ark., for appellants; Jack Greenberg and Charles E. Williams, III, New York City, on brief.

John A. Davis, Pine Bluff, Ark., for appellees.

Before STEPHENSON, Circuit Judge, MARKEY, Chief Judge, ^* and HENLEY, Circuit Judge.

HENLEY, Circuit Judge.

A. C. Lang and his brother, Curtis Lang, who are black, appeal from a judgment of the United States District Court for the Eastern District of Arkansas dismissing their civil rights complaint against Marshall Cone and Tom Magness who in 1972 were white members of the Pine Bluff, Arkansas Police Department.The parties will be referred to as they appeared in the district court.

Plaintiffs originally sued not only Cone and Magness but also another white policeman, George Norwood, who died while the litigation was pending.After Norwood's death the complaint against him was dismissed, no effort being made to revive it against his estate.

The complaint alleged in substance that on the night of September 8-9, 1972the defendants, acting within the scope of their employment and under color of state and local law, deprived plaintiffs of rights protected by the fourteenth amendment to the Constitution of the United States.Plaintiffs sought actual and punitive damages against the defendants jointly and severally.Jurisdiction, which was not questioned, was properly based on 28 U.S.C. § 1343(3)and42U.S.C. § 1983.The defendants answered the complaint and denied liability.

A belated request by the surviving defendants for a jury trial having been denied, the case was tried nonjury before District Judge Oren Harris.At the conclusion of the plaintiffs' case the defendants moved, pursuant to Fed.R.Civ.P. 41(b), for a dismissal of the complaint.The motion was granted as to the complaint of A. C. Lang but was denied as far as Curtis Lang was concerned, and the trial proceeded to conclusion as to him.Both defendants testified in their own behalf and called a number of witnesses.

At the conclusion of the trial the district court called for memorandum briefs which were duly filed.On January 8, 1976the district court filed a memorandum opinion incorporating its findings of fact and conclusions of law adverse to the claim of Curtis Lang.On the same day a formal judgment was entered dismissing the claims of both plaintiffs with prejudice.

For reversal, plaintiffs content that the district court failed to consider the testimony of disinterested witnesses, that it erred in sustaining the Rule 41(b) motion of the defendants as to A. C. Lang, and that its ultimate findings as to both plaintiffs were clearly erroneous.

At the outset, we reject the contention of plaintiffs that Judge Harris, an able and experienced trial judge, limited his consideration to the testimony of certain particular witnesses and ignored the testimony of other witnesses.Judge Harris would certainly not have been likely to do that, and we think that when what he said in connection with his granting of the motion to dismiss the complaint of A. C. Lang and what he wrote in connection with the claim of Curtis Lang are fairly read, it is clear that Judge Harris considered all of the evidence in the case and tried to give due weight to all of the evidence.

The case arises from the fact that during the late hours of Friday, September 8, 1972Curtis Lang, a twenty year old resident of Pine Bluff and a college student, was arrested by the defendants, including Norwood, was taken to the Pine Bluff Police Station and charged with operating a motor vehicle without a driver's license, with reckless driving, and with evading arrest.

Curtis Lang was held for a short time at the police station and then was released from custody on bail supplied by his older brother, the plaintiffA. C. Lang.Curtis Lang claimed to have been injured by the officers in the course of the arrest, and he and his brother proceeded from the police station to the Jefferson County Hospital in Pine Bluff where they had another encounter with the same three police officers.In the course of that encounter Officer Norwood drew his pistol and pointed it at A. C. Lang.Prior to that time the plaintiff just mentioned had had no personal difficulty with the officers.

After the confrontation, the Lang brothers left the hospital in Pine Bluff and drove to the University of Arkansas Medical Center at Little Rock, a distance of some fifty miles, where Curtis Lang was examined by a doctor employed at University Hospital.The doctor found nothing substantial wrong with Curtis Lang and released him.The Langs then returned to Pine Bluff, and the following week Curtis Lang returned to the college in Monticello, Arkansas.He claims, however, that he was still suffering from the injuries that he received at the hands of one or more of the arresting officers, and that he required and received medical treatment from a private doctor.

The claim of Curtis Lang is based on the injuries that he says he received while being arrested, on verbal abuse and threats allegedly made by the officers, and on the alleged acts of the officers at the Jefferson County Hospital which he believes deprived him of needed medical attention.

The claim of A. C. Lang is based on the alleged unlawful act of Norwood in threatening him with a pistol, and he contends that the other officers involved are liable for the alleged act of Norwood, his claim being that the officers at all times were acting in concert.

There is no quarrel about the law of the case; the dispute between the parties is entirely factual.The versions of the two sides as to what happened in Pine Bluff during the period in question are directly opposed to each other, and the theories of both sides were supported by substantial evidence.

Had the trial judge been persuaded by the evidence produced by the plaintiffs, including their own testimony, he might well have found that Curtis Lang was arrested and imprisoned unlawfully, that in the course of his arrest he was struck with the butt of a rifle or shotgun being wielded by Officer Norwood, that he was knocked down and then kicked by Magness, that on the way to the police station he was cursed in racial terms and was threatened with death, and that later the officers in effect drove him and his brother away from the hospital before Curtis Lang could be seen by a physician.The trial judge might also have found that Officer Norwood unlawfully menaced A. C. Lang with a pistol when A. C. Lang insisted that his brother see a doctor.And the trial judge might well have found that the officers were acting in concert, and that each was liable for the...