Mahoney v. Kesery

• Decision Date: 18 July 1991
• Docket Number: No. 90-C-224.,90-C-224.
• Citation: 770 F. Supp. 472
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Thomas MAHONEY, Plaintiff, v. Russell KESERY, et al., Defendants.

770 F. Supp. 472

Thomas MAHONEY, Plaintiff, v. Russell KESERY, et al., Defendants.

No. 90-C-224.

United States District Court, E.D. Wisconsin.

July 18, 1991.

Sharon Sullivan, Chicago, Ill., for plaintiff.

Grant F. Langley, City Atty. by Scott G. Thomas, Asst. City Atty., Milwaukee, Wis., for defendant Kesery.

Robert G. Ott, Corp. Counsel by Mary Ellen Poulos, Asst. Corp. Counsel, Milwaukee, Wis., for defendant Smith.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

On March 5, 1990, the plaintiff, Thomas Mahoney, filed this civil rights action against defendants Russell Kesery, a Milwaukee city police officer, and Mary Anne Smith, a Milwaukee county assistant district attorney. Mr. Mahoney charged that he was arrested without probable cause and maliciously prosecuted in violation of his constitutional rights and § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. On May 9, 1991, a jury trial of the action was commenced.

During the trial, the court granted defendant Smith's motion for a directed verdict based upon her defense of absolute immunity. Ultimately, the jury returned a verdict in favor of the plaintiff and against Officer Kesery, the remaining defendant. The jury awarded the plaintiff damages in the sum of $20,000, and the court directed the entry of judgment in that amount. Officer Kesery has now filed a motion for a judgment notwithstanding the verdict pursuant to Rule 50(b), Federal Rules of Civil Procedure, and a motion for a new trial pursuant to Rule 59, Federal Rules of Civil Procedure. The motions will be denied.

I.

In November 1986, when the incident giving rise to the action occurred, the plaintiff, Thomas Mahoney, was a student at Marquette University. The plaintiff lived with four other Marquette students in a house located in the city of Milwaukee at 2221 West Wells Street. On the evening of November 22, 1986, the plaintiff and his housemates were hosting a beer party. During the party, the plaintiff and others became aware that a half-barrel (keg) of beer had been stolen from their front porch. The plaintiff testified that when he learned of the theft he went out onto the street, spotted two persons some distance away carrying a keg, and gave chase. He further testified that when he approached the culprits and called out to them, one dropped the keg and ran; the other, unsuccessful in his attempt to carry the keg alone, soon did the same. The plaintiff further testified that he then picked up the keg, mounted it on his back, and, later with the assistance of another student, set about carrying it back to the party. It was the plaintiff's testimony that he saw nothing more of the two persons from whom he had recaptured the beer keg, and that he simply returned to the party.

At trial, the evidence showed that the two young men who had stolen the keg were beaten, one severely injured, by a band of Marquette students who apparently sought greater retribution than the return of the beer keg to its owners. There was evidence that the beatings were witnessed by upwards of thirty persons. The theft of the keg, for which no criminal charges were ever filed, soon became a minor event in comparison to the beatings, for which the Milwaukee city police almost immediately began an investigation.

The day after the party, Milwaukee city police officers appeared at the house Mr. Mahoney shared to question its occupants about the beatings. On December 5, 1986, the officers reappeared at the house. Officer Gary Temp testified that, after notifying the plaintiff of his constitutional rights, he further questioned the plaintiff about his knowledge of the beatings. Officer Temp testified that at some point in his discussion with the plaintiff, he asked the plaintiff something to this effect: "So you're telling me that you stayed upstairs drinking with a buddy and never left the house last night?" Officer Temp testified that the plaintiff's response was "No." The plaintiff's testimony and that of Officer Temp were not literally in sharp dispute on the words used. Notably, the specifics of this colloquy were not mentioned in Officer Temp's police report. Plaintiff's Exhibit # 1-A (hereafter referred to as "PX # ____").

Officer Temp testified that he later discussed the plaintiff's conduct with one of the defendants, Officer Russell Kesery. Officer Kesery was in the process of conducting an extensive investigation of the beatings. The evidence at trial demonstrated that Officer Kesery was a thorough investigator: during his investigation, he interviewed approximately 45 persons, mostly Marquette students and meticulously recorded his personal observations in a series of police reports (PX # 1) and in his personal log books (PX # 7). Officer Kesery's police reports, which primarily consist of the statements of well over thirty students who were at the party but, remarkably, knew nothing of the beatings, strongly suggest that a "wall of silence" had been erected. Both Officer Kesery and Officer Temp testified that they believed the students were intentionally attempting to frustrate the police investigation.

Officer Kesery later made a direct inquiry of the plaintiff. True to the "wall of silence," the plaintiff declined to answer and referred Mr. Kesery to the plaintiff's father. The plaintiff's father, Patrick E. Mahoney, is an attorney — and testified that he made that fact clear to Officer Kesery during their initial telephone conversation. The testimony at trial also disclosed that the conversation between Officer Kesery and the plaintiff's father grew antagonistic. Patrick Mahoney testified that by the end of that conversation, Officer Kesery was seeking his social security number, presumably as a veiled threat of some sort of official action. The officer's difficulty breaking the wall of silence despite extensive interviews, coupled with Patrick Mahoney's hard attitude, may have aggravated Mr. Kesery's frustration with the case.

The plaintiff's ambiguous denial of Officer Temp's ambiguous question came to be recorded in one of Officer Kesery's log books as follows: "Mahoney by Temp: I was up in a bedroom w/a buddy drinking and I never left the house." Eventually, this came to be viewed by the state prosecutors as criminal conduct. Officer Kesery and Assistant District Attorney Smith alerted the plaintiff of this development when they jointly interviewed him on February 16, 1987.

On March 3, 1987, the plaintiff was named in a criminal complaint charging him with obstructing an officer in the conduct of his duty in violation of Wis.Stat. § 946.41(1). On March 5, 1987, a court commissioner reviewed the criminal complaint and made a finding of probable cause for arrest. On April 29, 1987, the plaintiff voluntarily appeared for arrest and was "booked" — searched, fingerprinted and photographed. However, on August 4, 1987, the eve of trial, the charges were dismissed on the motion of the assistant district attorney.

The plaintiff subsequently filed this civil rights action against Officer Kesery and Assistant District Attorney Smith. At trial, defendant Smith was dismissed from the action. The jury found that the plaintiff had been arrested without probable cause and maliciously prosecuted by Officer Kesery in violation of his constitutional rights and 42 U.S.C. § 1983. The jury awarded the plaintiff compensatory damages in the amount of $20,000.

II.

Officer Kesery raises two specific challenges in his motion for a judgment notwithstanding the verdict: that the evidence was insufficient to support the jury's verdict, and that he is entitled to a judgment as a matter of law under the doctrine of qualified immunity.

A.

Where based upon a challenge of the evidentiary basis for the verdict, a motion for a judgment notwithstanding the verdict must be denied if "the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed." Fleming v. County of Kane, 898 F.2d 553, 559 (7th Cir.1989) (quoting Cygnar v. City of Chicago, 865 F.2d 827, 834 (7th Cir.1989) (further quotation omitted)). The court is not permitted to "resolve conflicts in testimony, or weigh and evaluate the evidence." Cygnar v. City of Chicago, 865 F.2d 827, 834 (7th Cir.1989) (citing Anderson v. Gutschenritter, 836 F.2d 346, 348 (7th Cir.1988)).

There is no dispute that the plaintiff was arrested and prosecuted for obstructing Officer Temp in his investigation. However, there are some questions as to whether the plaintiff's conduct was obstructive at all. Specifically, there is a question as to whether the plaintiff's allegedly obstructive "no" response to Officer Temp question was directed to the "So you're telling me ...?" part of the inartfully cast question or the "... you stayed upstairs drinking with a buddy and never left the house last night?" part of the question.

The gist of the plaintiff's case was that Officer Kesery intentionally misconstrued his response to Officer Temp and improperly used it as the basis of a criminal prosecution. The plaintiff claimed that his response was insignificant, and that his conduct simply was not criminal. He suggested that Officer Kesery was improperly using him as an example — as a battering ram against the "wall of silence" then frustrating the investigation of the beatings. That a "wall of silence" existed is highly probable. Indeed, throughout his testimony, the plaintiff demonstrated this when he steadfastly, and perhaps beyond the limits of credulity, maintained that he knew nothing of the beatings when questioned by Officer Temp; skillful cross-examination by Officer Kesery's attorney suggested that it would have been difficult for the plaintiff not to have been a witness to the beatings.

On the other hand, the plaintiff made much of the fact that the statement Officer Temp attributed to him did not appear in Officer...