Ricketts v. City of Hartford

• Decision Date: 17 January 1996
• Docket Number: No. 443,D,443
• Citation: 74 F.3d 1397
• Parties: Weldon L. RICKETTS, Plaintiff-Appellant, v. CITY OF HARTFORD; Bernard Sullivan; Sal Gallo; Rob Davis; John DeMaio; Frank Sanzo; Armand Lupo; Matthew Rivera; Paul Cherniack; Mark Pawlina; Michael Fallon and Thomas Donovan, Defendants-Appellees, Hartford Police Department; Hartford Police Union; James Quigley; Gary Dumas; Anna Smith; Robert Scaglia and Jack Leitao, Defendants. ocket 94-7422.
• Court: U.S. Court of Appeals — Second Circuit

Page 1397

74 F.3d 1397

Weldon L. RICKETTS, Plaintiff-Appellant, v. CITY OF HARTFORD; Bernard Sullivan; Sal Gallo; Rob Davis John DeMaio; Frank Sanzo; Armand Lupo; Matthew Rivera Paul Cherniack; Mark Pawlina; Michael Fallon and Thomas Donovan, Defendants-Appellees Hartford Police Department; Hartford Police Union; James Quigley; Gary Dumas; Anna Smith; Robert Scaglia and Jack Leitao, Defendants.

No. 443, Docket 94-7422.

United States Court of Appeals Second Circuit.

Argued Oct. 31, 1994.

Decided Jan. 17, 1996.

As Amended on Limited Grant of Rehearing; Rehearing

Otherwise Denied Feb. 14, 1996.

Hope C. Seeley, Hartford, Connecticut (Hubert J. Santos, Santos, Peck & Smith, P.C., Hartford, Connecticut, of counsel), for Plaintiff-Appellant.

James J. Szerejko, Hartford, Connecticut (Michael J. Gustafson, Terrence M. O'Neill, Halloran & Sage, Hartford, Connecticut, of counsel), for Defendants-Appellees.

Before: WINTER, MAHONEY, and GODBOLD, ^* Circuit Judges.

MAHONEY, Circuit Judge:

Plaintiff-appellant Weldon L. Ricketts appeals from a judgment entered October 15, 1993 in the United States District Court for the District of Connecticut, Alfred V. Covello, Judge, that dismissed Ricketts' complaint charging numerous deprivations of his constitutional rights in violation of 42 U.S.C. Sec. 1983, and from an order entered April 6, 1994 that denied Ricketts' motion for a new trial. The judgment was entered following a jury trial that resulted in a verdict in favor of defendants-appellees Sal Gallo, Rob Davis, John DeMaio, Frank Sanzo, Armand Lupo, Matthew Rivera, Paul Cherniack, Mark Pawlina, Michael Fallon, and Thomas Donovan. ¹ Ricketts alleged in his third amended complaint that the individual defendants-appellees (other than Sullivan), all Hartford police officers, used excessive force against him and arrested him without probable cause to believe that he had committed a crime because he criticized the police while they needlessly beat a suspect whom they had just pursued and apprehended in the course of arresting that suspect.

On appeal, Ricketts claims that a flaw in the computer program that was used in connection with jury selection caused the venire from which his jury was chosen to be comprised almost entirely of white jurors in violation of the equal protection component of the Due Process Clause of the Fifth Amendment. He also challenges the district court's decision to exclude various items of evidence and to preclude corresponding lines of examination of witnesses.

We affirm.

Background

A. Factual Background.

On August 12, 1987, numerous police officers (nearly all white, except for one Hispanic and one black) were engaged in a lengthy chase of Timothy Moore, a black man suspected of an assault and attempted robbery, through the streets of Hartford, Connecticut. The chase passed through a soccer field where Ricketts, also black, coached a soccer team of black youths. Just after passing through the soccer field, the police caught up with Moore and attempted to subdue him. After a series of events, described entirely differently by each side to this litigation, both Moore and Ricketts were arrested. We summarize the testimony concerning these events and their aftermath.

Ricketts testified and produced an additional thirteen eye-witnesses, including youths and adults who were assembled on the soccer field and residents of a nearby housing complex. With respect to the chase, one witness testified that one police car sped directly towards Moore and nearly hit him; this was characterized by another witness as an attempt by two police cars to run Moore over, and by others as an attempt to head Moore off. One officer on foot attempted unsuccessfully to trip Moore by throwing his nightstick. There was testimony that the crowd that had gathered laughed at the officers' failed attempts to catch Moore.

Finally, Moore tripped, collapsed or was brought down by an officer, and several police officers converged upon him, handcuffed him, and began beating him by punching him, kicking him, and hitting him with their nightsticks. The witnesses presented divergent accounts of the number of officers involved. One witness testified that between ten and twelve officers beat Moore, and others recalled at least six or seven, while most testified that three to five officers participated in the beating, but that other officers watched, having formed a semicircle around Moore. There was also varying testimony that the beating lasted nearly five minutes, over three minutes, and about one minute. Prior to the time that Ricketts became involved, another bystander attempted to intervene, but an officer threatened him with arrest and pushed him back from the altercation.

The testimony continued that Ricketts, who claimed that he believed that the officers were trying to kill Moore, moved towards the officers and asked them why they were beating Moore. Some witnesses, including Ricketts himself, described Ricketts as approaching the officers calmly, while others testified that he did so quickly, shouting angrily "this is not right" and "why are they doing this." One witness testified that as Ricketts approached the police, others in the crowd moved in as well.

Either just as Ricketts arrived, or after an exchange with the officers, or after Ricketts was told or threatened repeatedly not to interfere with Moore's arrest, several officers turned upon Ricketts and wrestled him to the ground. While most of the witnesses testified that the officers beat Ricketts just as they were beating Moore (punching and kicking him, and hitting him with their nightsticks), one witness testified that Ricketts flailed his arms and kicked his legs in an effort to escape, and another suggested that the beating was less severe than Moore's and responded to Ricketts' struggling. In addition, one witness testified that the same officers who beat Moore were the ones who beat Ricketts, while others stated that perhaps one, two, or three of those officers were joined by other officers. Similarly, one witness testified that the officers beat Ricketts for about three minutes, while another stated that the officers beat him for two minutes, another for one minute, and yet another for twenty-five to thirty seconds while Ricketts struggled and resisted arrest.

Witnesses also related that while Ricketts was being beaten, several officers crossed the street to the soccer field and verbally abused the onlooking crowd. Cherniack allegedly said "[y]ou people are such animals," and another officer allegedly called one of the onlookers a "black nigger bastard." In addition, some of the witnesses testified that after Moore and Ricketts had been taken away, several officers performed "high-fives," that is, they slapped their palms against one another's.

Ricketts claimed that when he approached the officers and asked them why they were beating Moore, one officer, Davis, grabbed Ricketts across his neck from behind with a baton, preventing him from breathing. Five or six others, including Fallon, Donovan, Pawlina, and Cherniack, grabbed Ricketts' arms and legs, throwing him to the ground, and kicked him and beat him with their nightsticks and fists. Ricketts testified that during this melee, he was able to note the badge numbers of all of the officers involved. He also testified that he was dazed or lost consciousness after the beating, and was "dragged" to a police car. A witness testified, however, that Ricketts remained conscious and continued to struggle throughout the incident. On the other hand, several witnesses confirmed that Ricketts was dragged from the scene of the altercation.

Ricketts was then brought in a police car to Mount Sinai Hospital in Hartford, where he was taken into the hospital on a stretcher to which he was handcuffed. Ricketts saw Davis, Cherniack, and Pawlina at the hospital. Davis asked Ricketts for identification, which Ricketts did not have (it was in a bag back at the soccer field). Davis then ripped the pockets off Ricketts' sweatpants. Another officer, probably Pawlina, told Ricketts that he was "[t]here to clean rats out of the gutter" and that Ricketts was one of the rats. Ricketts saw the officers gathered in a group planning how to describe the incident and laughing. After Ricketts was released from the hospital and into police custody, he filed a citizen's complaint against the officers. Ricketts was charged with assault, breach of the peace, and inciting to riot, but the charges were ultimately dismissed.

Not surprisingly, the police witnesses offered a different version of these events. Rivera, who had met with a woman who had been assaulted in an apparent attempt to rob her, proceeded to the vicinity of the assault and there observed Moore, an individual who matched the victim's description of her assailant. Rivera contacted Donovan and Davis, who were assigned to that area, by radio. Moore, the suspect, then saw Rivera and fled as Rivera approached him. Rivera requested assistance and began to follow Moore, first by car and then by foot. Rivera was joined in the foot chase by Nelson, a black police officer involved in the chase but not named as a defendant, Donovan, and Davis. Eventually, the chase led through the soccer field, where a crowd that had gathered cheered Moore on. Officers called out to the crowd to stop Moore, but no one did. Rather, the crowd obstructed the officers who were pursuing Moore.

Other officers in cruisers arrived. The tape recording of the officers' radio transmissions reveals that someone said: "Run him over." Ricketts contends that the voice belonged to Davis (the tape also reveals that the police dispatcher said "[d]on't give up, Rob," which is Davis' nickname), but Davis denied saying this, or even hearing it at the time of the chase. Davis and other officers have listened to the tape, but cannot identify the voice, although they have identified Davis' voice as being on the tape...