Miller v. Heaven

• Citation: 922 F. Supp. 495
• Decision Date: 19 March 1996
• Docket Number: No. 92-4295-SAC.,92-4295-SAC.
• Parties: Kimberly MILLER, Plaintiff, v. Officer Chris HEAVEN, as an Officer of the City of Topeka, Kansas, and as an Individual, Defendant.
• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

922 F. Supp. 495

Kimberly MILLER, Plaintiff, v. Officer Chris HEAVEN, as an Officer of the City of Topeka, Kansas, and as an Individual, Defendant.

No. 92-4295-SAC.

United States District Court, D. Kansas.

March 19, 1996.

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Lee R. Barnett, Keith E. Renner, Jon E. Thornbrugh, Barnett, Yockers & Renner, P.A., Wakarusa, KS, C. Richard Comfort, Comfort Law Office, Minneapolis, KS, Max A. Eulert, Manhattan, KS, for plaintiff.

Michael S. Greiving, William E. Enright, Scott, Quinlan & Hecht, Topeka, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

On October 30, 1995, trial in this excessive force/first amendment case commenced. In this § 1983 action, Miller sought to impose liability against Officer Chris Heaven for violation of her first amendment right to free speech and for violation of her fourth amendment right to be free from the use of excessive force. Greatly simplified, on August 5, 1992, Miller was arrested by Officer Bill White.¹ Miller was placed in the back seat of the police car to be transported to jail. Officer White drove the vehicle while Miller and Officer Heaven road in back seat. At trial, Miller testified that Officer Heaven, in response to her questions regarding why she was being arrested,² sat on her and repeatedly beat her in the face, causing, inter alia, a broken nose. Officer Heaven denied Miller's allegations that he had used excessive force or that he had violated her first amendment right to ask why she was being arrested. Officer Heaven testified that he only used the force reasonably necessary to protect himself, Officer White, Miller and the police car from Miller's obstreperous behavior. Officer Heaven testified that he did sit on Miller to restrain her, but testified that such action was warranted and appropriate under the police training he had received as he had exhausted all of the other less physical means of restraint. Officer White testified that he did not know how Miller came to be injured in the back seat.

Following the close of evidence, the court denied the plaintiff's motion for judgment as a matter of law. The jury subsequently returned a verdict finding that Officer Heaven did not violate Miller's constitutional rights.

This case comes before the court upon Miller's "Motion for Judgment N.O.V. or in the alternative Request for New Trial" (Dk.132). Miller contends that the jury's verdict was contrary to the weight of evidence presented. Alternatively, Miller requests a new trial.

Standard for Judgment as a Matter of Law³ under Fed.R.Civ.P. 50

Fed.R.Civ.P. 50 provides in pertinent part:

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.

(b) Renewal of Motion for Judgment After Trial; Alternative Motion for New Trial. Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed by service and filing not later than 10 days after entry of judgment. A motion for a new trial under Rule 59 may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative. If a verdict was returned, the court may, in disposing of the renewed motion, allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law.

Judgment as a matter of law is appropriate under Rule 50(b) "only if the evidence, viewed in the light most favorable to the nonmoving party, points `but one way and is susceptible to no reasonable inferences supporting' the nonmoving party." Riggs v. Scrivner, Inc., 927 F.2d 1146, 1149 (10th Cir.) (quoting Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir. 1988)), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). Judgment as a matter of law is only proper "when the evidence so strongly supports an issue that reasonable minds could not differ." Zuchel v. City and County of Denver, Colorado, 997 F.2d 730, 734 (10th Cir.1993) (quoting Ryder v. City of Topeka, 814 F.2d 1412, 1418 (10th Cir.1987) (quoting Delano v. Kitch, 663 F.2d 990, 1002 (10th Cir.1981) (citations omitted))); see Goodwin v. Enserch Corp., 949 F.2d 1098, 1101 (10th Cir.1991) (the nonmovant's position must be supported by more than a scintilla of evidence). "A reviewing court `is not permitted to consider the credibility of witnesses in reaching its decision ... nor may a court weigh the evidence or determine where the preponderance of the evidence lies.'" Zuchel, 997 F.2d at 734 (quoting Ryder, 814 F.2d at 1418) (quoting Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir. 1983) (citations omitted)).

Standard for Motion for New Trial

Fed.R.Civ.P. 59(a) authorizes the court to grant a new trial to all or any of the parties on all or part of the issues "in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." A trial court has broad discretion in deciding whether to grant or deny a motion for a new trial. McDonough Power Equipment, Inc. v. Greenwood 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984). In considering the motion, the court should "exercise judgment in preference to the automatic reversal for `error' and ignore errors that do not affect the essential fairness of the trial." McDonough Power Equipment, 464 U.S. at 553, 104 S.Ct. at 848. The motion may be granted where the court believes the verdict is against the weight of the evidence or prejudicial error has occurred. Anderson v. Phillips Petroleum Co., 861 F.2d 631, 637 (10th Cir.1988).

When the issue concerns the verdict being against the weight of the evidence, the trial court in exercise of its discretion reviews the evidence. Black v. Hiebs Enterprises, Inc., 805 F.2d 360, 363 (10th Cir. 1986). The focus is upon whether the evidence is clearly, decidedly, or overwhelmingly against the weight of the evidence. Continental Cas. Co. v. Southwestern Bell Telephone Co., 860 F.2d 970, 972 (10th Cir. 1988), cert. denied, 489 U.S. 1079, 109 S.Ct. 1530, 103 L.Ed.2d 836 (1989).

Because of the sanctity attached to jury verdicts, courts do not lightly overturn them. Mid-West Underground Storage, Inc. v. Porter, 717 F.2d 493, 502 (10th Cir.1983). In determining whether a new trial is appropriate, the trial court does not sit merely as an additional juror. de Perez v. Hospital del Maestro, 910 F.2d 1004, 1006 (1st Cir.1990). It must have more than the belief it would have reached a different verdict, the trial court must "`feel that the jury quite clearly reached a seriously erroneous result in spite of the clear weight of the evidence.'" Leichihman v. Pickwick Intern., 814 F.2d 1263, 1267 (8th Cir.) (quoting Leichihman v. Pickwick International, Inc., 589 F.Supp. 831, 834 (D.Minn.1984)), cert. denied, 484 U.S. 855, 108 S.Ct. 161, 98 L.Ed.2d 116 (1987).

Exclusion of Polygraph Evidence⁴

As part of the police department's internal affairs' investigation of Miller's excessive force complaints, both Miller and Officer Heaven were given a polygraph examination. Miller apparently "passed" the polygraph examination. Officer Heaven apparently did not. Officer Heaven sought to exclude from evidence "the use of any and all testimony or exhibits related to the use, testing, or results of polygraph examinations taken of both plaintiff" and himself. Relying on the fact that polygraph examinations have traditionally been excluded as (1) unreliable and/or (2) confusing to the jury or supplanting the role of the jury, Officer Heaven sought exclusion of the evidence regarding the polygraph examinations. The polygraph examinations were apparently taken prior to the time the instant lawsuit was filed. Officer Heaven sought to exclude the evidence as unreliable.

Miller made several responses. Extracting the plaintiff's arguments from her briefs:

1. Polygraph examinations are not declared inadmissible under the Federal Rules of Evidence; polygraph examinations should be admitted under Fed.R.Evid. 702.

2. The results of the polygraph examinations should be admitted for purposes of rehabilitation, i.e., attacks on Miller's credibility;

3. The fact that Miller voluntarily submitted to a polygraph examination is relevant to show her state of mind; the fact that Officer Heaven refused to complete the exam is relevant to his state of mind and is an admission against interest.⁵

4. Polygraph examinations are currently more reliable than they were when the courts developed the general rule excluding them from evidence; the trend in federal courts is to allow polygraph examination evidence.

5. The court can give limiting instructions to the jury.

6. Officer Heaven stipulated to the use of the polygraph.⁶

7. The evidence is relevant under Rule 404(b) and for purposes of impeachment.

8. If Officer Heaven challenged the efficacy of the police department's investigation, Miller should be entitled to introduce evidence to show the thoroughness of the investigation.⁷

In evaluating the...