Latino v. Kaizer
| Decision Date | 12 July 1995 |
| Docket Number | Nos. 94-3237 and 94-3550,s. 94-3237 and 94-3550 |
| Citation | 58 F.3d 310 |
| Parties | Daniel LATINO and Robert Slawinski, Plaintiffs-Appellees, v. Edward KAIZER and City of Chicago, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Leon E. Lindenbaum (argued), Lindenbaum, Coffman, Kurlander, Brisky, & Hayes, Chicago, IL, for plaintiffs-appellees.
Martha R. Barglow, Lawrence Rosenthal, DCC, John F. McGuire, ACC, Benna R. Solomon, Alec M. McAusland, Melvin L. Brooks, Julian Henriques (argued), Susan S. Sher, Office of the Corp. Counsel, Appeals Div., Chicago, IL, for defendants-appellants.
Before EASTERBROOK and KANNE, Circuit Judges, and SHARP, Chief District Judge. *
The defendants-appellants, police officer Edward Kaizer and the City of Chicago, appeal a jury award of damages against them in favor of plaintiffs-appellees Daniel Latino and Robert Slawinski for arrest without probable cause and false imprisonment. The plaintiffs' jury award came after the second trial in this case; the first jury trial found in favor of the defendants, but that verdict was vacated by the district judge on a post-trial motion under Federal Rule of Civil Procedure 59. The second jury awarded the plaintiffs $5500.00 each, and the district judge then awarded plaintiffs $120,113.50 in attorney fees and $1,019.34 in expenses under 42 U.S.C. Sec. 1988, 864 F.Supp. 835.
Latino and Slawinski sued Chicago and two officers, Kaizer and William Gordon, under the state common law tort of false imprisonment and 42 U.S.C. Sec. 1983 for alleged violations of their Fourth and Fourteenth Amendment rights. The plaintiffs were arrested by Officer Kaizer and an undetermined 1 second officer on June 2, 1991 for ticket scalping 2 at the first Bulls-Lakers game in the final round of the NBA playoffs. All agree that the arrest occurred the night of June 2, 1991 outside the Chicago Stadium, but there ends the similarities between the parties' stories.
The jury in the first civil trial found against the plaintiffs in favor of defendants, but the district judge granted the plaintiffs' post-trial motion and vacated the jury's verdict. In so doing he found that the officers' version of events was perjury, and absent that testimony, the jury's verdict for the defendants was against the weight of the evidence. Because this court finds that the first jury verdict should not have been vacated it reinstates that verdict in favor of the defendants.
This case boils down to a swearing contest between the police officers and the plaintiffs. Officers Kaizer and Scornavacco testified that they were undercover at the Stadium, assigned to patrol on foot before the game to apprehend pickpockets and ticket scalpers. The officers spotted Latino and Slawinski on the north side of Madison Street walking west toward Gate 1 of the Stadium building, each holding something in his hand. The officers separated and crossed the street after the plaintiffs. Kaizer stated that he saw Latino and Slawinski stopped by a couple of people in front of Gate 1, and he walked over and joined the group. Latino and Slawinski were standing side-by-side, and each was holding a pair of tickets.
While Officer Scornavacco walked about 10 to 15 feet behind the plaintiffs, Kaizer heard someone in the crowd ask, "Well, what kind of seats are they?" Both plaintiffs replied that they were good seats. Kaizer then heard someone ask, "How much are they?" He did not hear the reply, but did hear someone comment "I don't want to pay that." Officer Kaizer repeated the question himself, asking Latino and Slawinski "How much are they?" Latino responded "$150." Officer Kaizer then looked at Slawinski and asked, "And yours?" Slawinski responded "$150" as well.
Officer Kaizer then announced that he was a police officer and that he was arresting them for ticket speculation, showed his badge, and placed a handcuff on Latino's right wrist. Officer Scornavacco walked up and placed the other half of the handcuffs around Slawinski's left wrist, handcuffing the plaintiffs together. Officer Kaizer then asked them for their tickets. Kaizer took two tickets from Latino, and Scornavacco took two from Slawinski. Kaizer then asked for their identification, and both produced wallets and drivers' licenses with their free hands. Kaizer and Scornavacco then walked the plaintiffs south across Madison Street into the parking lot and turned them over to a sergeant.
After the game started around 2:30 p.m., the officers left the stadium for the Thirteenth District police station. While Officer Kaizer processed the arrestees, he removed the confiscated tickets from his pocket and separated them from the identification cards, and placed them in individual inventory envelopes assigned to each arrestee. Latino and Slawinski were then locked up and were later released on recognizance bonds.
The plaintiffs' version of events was strikingly different. At the time of his arrest, Latino was Director of Alcoholic Beverages for the Phar-Mor Drug Company. He testified that as of the morning of June 2, 1991, he had received two tickets for the game from a Phar-Mor supplier. Latino invited Slawinski (his tennis partner and an area sales manager for an alcoholic beverage distributor) to attend the game with him. They met Latino's boss, Phar-Mor CEO Mickey Monus, and approximately eight other people associated with Phar-Mor for lunch at Pizzeria Uno near downtown Chicago.
Monus took the tickets from the people at the luncheon and redistributed them. Monus took Latino's two tickets, but gave him back four. He informed Latino that the extra two tickets should be given to buyers from Phar-Mor or others in the industry.
Latino and Slawinski drove in Latino's car to the stadium, arriving at approximately 1:00 p.m. Latino testified that he left his wallet and identification in his car. Slawinski testified that he had no wallet or identification. As the plaintiffs walked toward the stadium, they looked for but did not see anyone from Phar-Mor or Slawinski's company. Latino then spotted an acquaintance, Richard Scrima, in a parking lot on the south side of Madison Street. They crossed to the south side of the street and Latino went up to Scrima; Slawinski stopped about ten or twenty feet before Latino did.
Latino informed Scrima that he had extra tickets to the game, and asked him whether he had seen anyone from the industry, or for any suggestions about what to do with his extra tickets. Scrima testified that he offered to buy the tickets, but Latino refused.
Latino testified that Scrima asked him if he could help out Scrima's acquaintance who was standing there. The man pulled out two tickets, and asked whether Latino would "trade up" tickets. Latino refused, turned, and walked away. Interestingly, Scrima testified that he did not remember introducing anyone to Latino, or the encounter about which Latino testified.
Just after Latino walked away from Scrima he was tapped on the shoulder by Officer Kaizer, who told him he was under arrest for scalping and cuffed his right wrist. Kaizer led Latino toward Slawinski (who then was standing not more than ten feet away). At this point Scrima noticed that Latino had been arrested, and stated that this had all occurred in about 25 or 30 seconds. Slawinski walked towards Latino, and was asked by another plainclothes officer (either Gordon or Scornavacco) if he knew Latino. When Slawinski said that Latino was a friend of his, the second officer cuffed Slawinski's left wrist to the other end of the cuff on Latino's right wrist.
Officer Kaizer asked Latino for identification and Latino told him it was in his car. Kaizer asked how many tickets he had, and Latino replied four. Kaizer did not request the tickets. Kaizer led Latino and Slawinski to the parking lot where they were turned over to another officer.
Slawinski testified that Kaizer did not ask for the tickets until they were at the station. When asked for them, Latino gave Kaizer all four. Slawinski said he had no tickets. Officer Kaizer paperclipped two tickets at random to Latino's form and two to Slawinski's.
The jury in the first trial found in favor of the defendants, Officers Kaizer and Gordon and the City of Chicago. The plaintiffs filed post-trial motions under Rules 50 and 59 with the district judge, requesting a new trial. The district judge denied the Rule 50 motion for judgment as a matter of law. He acknowledged that the admissible evidence presented by the defense, if believed by the jury, supported the defendants' verdict. However, Judge Shadur granted a new trial under Rule 59, finding that the police officers' testimony was perjury, and when the perjurious testimony was stricken, the verdict was against the weight of the remaining evidence. The district judge also vaguely referred to defense counsel's closing as improper, saying that added "some further weight" to the decision to grant the new trial. 3
The plaintiffs-appellees attempt to reargue the facts before this court and show that their version of events was more believable. Such is not our role. We must decide only whether the district judge properly vacated the first jury verdict. Judge Shadur has provided a clear, straightforward, and precise statement of his reasons for finding perjury and vacating the first jury verdict. This court must determine whether such action was appropriate.
The defendants did not appeal the district judge's grant of a new trial, but rather proceeded with the second trial. An order granting a new trial is not a final order within the meaning of 28 U.S.C. Sec. 1291 and is therefore generally not immediately appealable. Nevertheless, after a new trial and entry of final judgment an appellate court entertaining an appeal from the final judgment may review the decision to...
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