McQurter v. City of Atlanta, Ga.

• Decision Date: 13 September 1983
• Docket Number: Civ. A. No. C79-1284A.
• Citation: 572 F. Supp. 1401
• Parties: Patricia E. McQURTER, Plaintiff, v. CITY OF ATLANTA, GEORGIA, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

572 F. Supp. 1401

Patricia E. McQURTER, Plaintiff, v. CITY OF ATLANTA, GEORGIA, et al., Defendants.

Civ. A. No. C79-1284A.

United States District Court, N.D. Georgia, Atlanta Division.

September 13, 1983.

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Elizabeth J. Appley, Margie Pitts Hames, Atlanta, Ga., for plaintiff.

Marva J. Brooks, W. Roy Mays, Atlanta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This action brought under 42 U.S.C. §§ 1983 and 1988 for violations of the civil rights of Bennie McQurter was tried to the court without a jury from March 11-12, 1982 and from June 17-25, 1982. On June 23, 1982 the court granted the motions of defendants Lane and Davis for directed verdict. The plaintiff filed her proposed findings of fact and conclusions of law and memorandum on January 13, 1983, and the defendants filed their post-trial brief on February 23, 1983, to which plaintiff replied on March 14, 1983. Herein are the court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

FINDINGS OF FACT

Around July 10, 1977 Bennie McQurter went to a tavern operated by R.S. Barber. He ordered a Coke and then fell asleep. Barber told him he could not sleep in the tavern. McQurter threw the coke and its can against the bar, cursed Barber, and left the tavern.

In about fifteen minutes McQurter returned and told Barber that he wasn't "going any goddamn place." Barber called the police.

On July 17, 1977 McQurter came back to the tavern. Barber recognized him as the man he had had the difficulties with earlier and ordered him out. McQurter again began cursing and acting wild. Barber again called the police. Officer K.D. Duncan of the Atlanta Bureau of Police Services ("ABPS") responded to the call and met McQurter at the tavern. McQurter was ordered off the premises. That was the end of the matter for that night.

On the following evening McQurter walked by the tavern again and told Barber he was going to kill him. Barber got his gun. McQurter started running toward Barber but tripped. He then repeated his intent to kill Barber and said that he was going to get him. The police again were called, and Officer Kenneth E. Burdette responded. Barber related the foregoing and described McQurter to Burdette.

Officer Duncan was also on duty that night and heard the call for help at the tavern. Over the radio he told Burdette something of his involvement the previous evening and gave Burdette a physical description of McQurter.

Burdette cruised the neighborhood in a patrol car until he saw a person fitting the description he had received from Barber and Duncan. He stopped McQurter and asked him to identify himself. McQurter gave his name as Gene Johnson. Burdette frisked McQurter for weapons and asked him if he would come up to the tavern and endeavor to get things straightened out. McQurter got in the back seat of the patrol car and they drove to the tavern. Burdette did not place handcuffs on McQurter.

When Burdette arrived at the tavern, Officer Duncan and Barber were there. Burdette learned that McQurter had given another name the night before. While Burdette was having a conversation with Barber and Duncan, McQurter remained in the rear seat of the patrol car. It was impossible for him to get out normally, for the handles had been taken off the doors and windows and there was a wire screen between the front and back seats. At some point while all were at the tavern, McQurter again became enraged and started cursing. He told Barber that he would get him for having him arrested. At about this point the officers told McQurter that he was under arrest for terroristic threats.

The officers apparently were still in some doubt as to McQurter's true name, so they drove to his nearby residence where they thought they might get a proper identification.

Burdette drove McQurter to his residence and Duncan followed. When they reached the home McQurter's father and sister-in-law came out and identified McQurter. At the time McQurter was loud but not violent. It seemed to the officers that McQurter was under the influence of alcohol and "something else." A later autopsy revealed that McQurter had ingested barbiturates and alcohol.

After the brief stop at the residence Burdette began backing his car up the street away from McQurter's home. McQurter protested about being taken to jail and started shaking the screen. Next, he started kicking at the back window of the car. Burdette brought his car to a stop and got out, and Duncan, who was nearby, did the same and came to Burdette's assistance. One of the rear side windows broke, and McQurter started coming out. The officers hit him on his shins with slapjacks, and Duncan hit him on the head several times with a four-cell metal flashlight he was carrying. While coming out of the car McQurter managed to kick the officers. Burdette and Duncan tried to pin him to the side of the car and handcuff him. A cuff was successfully attached to one of his wrists, but the other was free, and McQurter began slinging it around at the officers. Duncan, using his flashlight, attempted to get a choke hold on McQurter and he succeeded after a fashion. Duncan had been taught to use the carotid hold.¹ However, Duncan instead applied pressure initially on the front part of the throat. Duncan and McQurter dropped to the ground and Duncan continued to apply pressure. McQurter was struggling. Burdette managed to attach the other cuff to McQurter's wrist. He then asked Duncan to roll over so he could get that officer's cuffs. Duncan obliged and Burdette then manacled McQurter's feet.

At the beginning of the scuffle one of the officers had placed a help call on his personal radio. After McQurter was cuffed the help call was cancelled, and instead, a call was given for supervisors and for a paddy wagon. From this point on, of course, there was no possibility of McQurter escaping, and the two officers were quite capable of otherwise controlling McQurter.

After McQurter was cuffed and manacled, Duncan adjusted his choke hold so as to apply pressure on the sides of the neck. In the first few moments McQurter continued to resist and at one point attempted to pull Duncan's flashlight away from him. He raised up several times and at one point was able to speak or mumble something to his father who had arrived on the scene. Each time McQurter sought to move, raise up, or resist, Duncan applied increased pressure with the choke hold. When McQurter was still, Duncan relaxed the pressure. For several minutes prior to the arrival of the paddy wagon which transported McQurter to the hospital, he was quite motionless, and when the officers placed him in the paddy wagon, he was completely limp and apparently unconscious.

A half-sister of McQurter saw the struggle and came running up the street to find her brother pinned down by the officer. She then went screaming back to the residence. Thereafter, eight family members and ten or twelve other bystanders arrived, as did Lt. N.D. Lauth and Sgt. E.W. Grier. The crowd was boisterous but not unruly. One of the officers told family members that if they did not get away from the scene they would be locked up. A neighbor was photographing the scene and an officer directed him to desist or he would be arrested. From the time McQurter was subdued until the paddy wagon arrived, fifteen minutes elapsed. During the first few minutes Burdette was involved in making calls on his radio, dealing with the family members who had gathered, and briefing Lt. Lauth. He did nothing to induce Duncan to release the choke hold or to get off McQurter. He did not at any time check on McQurter's physical condition, attempt to apply any first aid, or attempt to call any medical personnel to the scene.

Lt. Lauth arrived on the scene about five minutes after McQurter was subdued. He observed Officer Duncan on his knees with his chest across McQurter's back, and he saw a choke hold being applied. He was briefed by Burdette and he then asked Duncan if he wanted to get up off of him. Duncan said no and Lauth said nothing further in this respect. Lauth testified that at the time he arrived on the scene McQurter posed no danger of escape and that he felt that everything was under control. Lauth was the senior officer in charge when he arrived. He apparently devoted most of his attention to the crowd.

At some point a paddy wagon arrived, but Lt. Lauth sent it along when he learned that it already contained a violent prisoner. Lauth did nothing to learn of McQurter's condition, nor did he administer any sort of first aid on the scene, nor did he attempt to seek the assistance of any sort of medical personnel.

After Lauth arrived Sgt. Grier came to the scene. He saw a lot of broken glass on the street, a police car with its rear window out, a large noisy crowd, and saw that Officer Duncan was on the ground. He made no attempt to find out what was going on with Duncan and did not consciously think out what his responsibilities were. Instead, he merely started dealing with the crowd. When the second paddy wagon arrived, Grier helped place McQurter's limp body in it. Grier never attempted to give any first aid or order anyone else to do so. Neither did he attempt to obtain the presence of medical personnel at the scene.

The paddy wagon transported McQurter's body to Grady Memorial Hospital. It is most likely that he died en route. When the paddy wagon got to Grady, McQurter's body was removed and placed in a wheelchair and taken straightaway to the detention area of the hospital. After some time personnel noticed that there was something wrong with McQurter. He was checked and it was discovered that he had died.

The testimony of Dr. Joseph Burton, a medical examiner for Fulton County, Georgia, was most interesting and helpful. He performed the autopsy on McQurter's body. His secondary findings included bruises and abrasions on the...