Russ v. Ratliff
| Decision Date | 27 July 1976 |
| Docket Number | No. 76-1007,76-1007 |
| Citation | 538 F.2d 799 |
| Parties | Mrs. Carnell RUSS, etc., et al., Appellants, v. Charles Lee RATLIFF, etc., et al., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James I. Meyerson, N.A.A.C.P., New York City, for appellants; Nathaniel R. Jones, N.A.A.C.P., New York City, and George Howard, Jr., Pine Bluff, Ark., on the briefs.
Lewis D. Smith, Little Rock, Ark., for appellee State.
Odell C. Carter, Star City, Ark., for appellee City.
Before BRIGHT, STEPHENSON and WEBSTER, Circuit Judges.
Carnell Russ, a 24-year old black man, was shot to death by a Star City, Arkansas, policeman, Charles Lee Ratliff, following Russ' arrest for speeding on Memorial Day afternoon, May 31, 1971. Russ' widow and children (appellants) unsuccessfully sought to recover damages for alleged violation of Russ' civil rights pursuant to 42 U.S.C. § 1983, and, relying upon pendent jurisdiction, under the Arkansas wrongful death act, Ark.Stat.Ann. §§ 27-906 et seq. The widow and children were denied recovery in district court and now bring this timely appeal. We affirm in part and reverse in part, granting a new trial against appellee Ratliff.
Mrs. Russ 1 named as defendants Star City policeman Ratliff; Jerry Green, an Arkansas highway trooper who arrested Russ; Norman Draper, who was to start working as a Star City policeman the day after the shooting and was on the day of the incident here in question accompanying Ratliff for the purpose of familiarizing himself with police procedures; Lynn Thomasson, mayor of Star City; and six others, all members of the city council of Star City, Arkansas. Only Officer Ratliff, State Trooper Green, and Draper witnessed the shooting incident.
The case was tried to a jury. At the close of plaintiffs' case, the district court granted a partial directed verdict dismissing the claims against Draper, Mayor Thomasson, and the members of the city council. The suit continued against Green and Ratliff but the jury denied any recovery against those defendants. Following the adverse jury verdict, Mrs. Russ unsuccessfully sought a new trial or judgment n. o. v. against Green and Ratliff. Thereafter, she brought this appeal from the judgment, contending that the trial court erred in dismissing Draper and the city officials from the case and in denying her a new trial or judgment n. o. v. as against Green and Ratliff.
The parties do not dispute the essential background facts. Arkansas State Trooper Jerry Green arrested Russ for driving 75 miles per hour in a 60 m. p. h. zone about six miles outside of Star City. In the car with Russ were his wife, six of his minor children, and another unrelated individual.
Trooper Green directed Russ to drive his car into Star City. In response to a radioed message from Trooper Green, Officer Ratliff, who was in a Star City police car accompanied by Draper, met Green and Russ at the courthouse in Star City. 2
From this point forward, the testimony contains some discrepancies as to exactly what occurred. Because the primary claim is against Ratliff, we will state the facts most favorably to him, relying primarily upon his testimony. Where important, we will note conflicting testimony.
According to Ratliff, the radio call did not state and he did not know why he was asked to meet Green at the courthouse. Ratliff had left his "slapper" in the car as he normally did. He did not have mace because his spray can had become inoperable. Ratliff carried a six-shot revolver (a Magnum 357 Colt Trooper Three) with five rounds loaded and the hammer resting on an empty chamber. When Ratliff met Green at the courthouse, Green asked him to make arrangements for a bond for his prisoner, Russ. Russ, however, requested that he be released on his own recognizance. Although state law gave Green discretion to release Russ on the basis of his signature and a promise to appear in court, Green refused to release Russ. 3 Ratliff then spent some time on the telephone trying to contact the sheriff or his deputy to obtain authority to release Russ without bond but he was unsuccessful. During this period Russ also made one or more telephone calls, apparently attempting to locate his father. These calls were unsuccessful.
There is testimony that Russ then asked that he be allowed to post a personal check. This offer, too, was refused. Some testimony indicated that Ratliff lacked authority to accept such a check. Ratliff demanded $23 by way of a cash bond. Russ then went to his car and returned with money held in his clenched fist. Neither Ratliff nor Draper recalled seeing the money, however.
Russ then demanded that Green give him a copy of the ticket. Green told Russ that the receipt which Ratliff was prepared to provide was all that he needed and that the ticket would be retained for the local court. Green's refusal to give Russ a copy of the ticket apparently violated state law. Ark.Stat.Ann. § 75-1008(d). See note 3 supra.
When denied a copy of the ticket, Russ became angry and started to curse the officers. Ratliff asked Russ if he had money and was willing to post bond and accept the receipt. There is a dispute as to Russ' exact response, 4 but in any event, he refused to turn over his money without a copy of the ticket. Ratliff then informed Russ that he would have to enter a jail cell. Russ refused to enter the cell and, according to Ratliff, squared off in a fighting stance "dancing and prancing around like a boxer" and announced that "(a)ll three of you m. f.'s can't put me in there." Ratliff then took Russ by the elbow to lead him into the cell. Ratliff's version of the incident proceeds as follows: 5
I ducked the swing and knocked him back against the wall with my fist. * * * He (Russ) came off swinging again. * * * I knocked him back again (with my fist). * * * He didn't fall. He's a big man. (Each blow knocked Russ back against the wall, a distance of about eight or ten feet.)
He settled down like a fighter then. He quit his dancing and he started swinging then, I mean sure enough, haymakers. * * * I hit him a couple of times with my fist, maybe three or four, I don't know.
Well, I let him swing, I don't know, maybe a dozen times and finally I decided Green had panicked or something, he just stood there froze and the boy was nearly hitting him, going by and coming by, and he never moved, so I didn't have a slapper and didn't have no gas and I wasn't paid to stand and fist fight nobody so I used my gun as a slapper. I hit him up side the head and knocked him to the office, all the way across it. He went through the door and and hit the wall, across a space like this room, and he come back still (fighting). (Ratliff hit him again with his gun.) There was a gun went off, I don't know whose it was.
The shot came from Ratliff's gun. It struck Russ between the eyes at a slight angle and inflicted a fatal wound.
Draper's testimony largely accords with that of Ratliff. He described the events after Russ refused to enter the cell as follows:
So Officer Ratliff with his right hand reached up and got Mr. Russ by the left elbow to start to lead him toward the jail. Mr. Russ drew back, and got in a fighting stance and drew back as if to strike Officer Ratliff. Officer Ratliff came up with his left hand and connected somewhere in the vicinity of his mouth with his fist.
Immediately as Ratliff grabbed put his hand on Mr. Russ' elbow. Mr. Russ drew back and made a swing and Ratliff come around with his left hand, and hit him in the vicinity of the mouth. And, there was some a couple, or three licks passed maybe more I can't really say.
There was a scuffling going on, the touching of each other, and so forth. The next thing I knew I did start at one time to step in and try to assist Ratliff. At that time he drawed his gun. And, he come out and made a swing, and hit Mr. Russ over the head somewhere in this vicinity. He fell back up against the frame of the doorway. The second time he swung again, he (Ratliff) was stretched away out similar to that, and when the gun discharged Mr. Russ fell back against this petition (sic).
It was just a matter of a very few seconds. It wasn't a very long time. It was real short period.
As did Draper, Trooper Green testified that the incident occurred in just a few seconds. Green further testified that
* * * Mr. Ratliff reached to get (Russ) by the arm. * * * Mr. Russ drawed back and squared off like a fighter would do. And, I don't I don't recall if he swung at Mr. Ratliff or I don't recall that. All I know is he squared off as if to fight. And, at that moment from there I seen a gun come up, and * * *
Q. Did you see * * * any fist-blows?
A. No, sir.
I don't recall any any fighting or no licks. I don't recall other than just Mr. Russ squaring off. I don't recall any licks * * * .
At this point in time this gun. I seen this gun come up, and as it as his (Ratliff's) arm extended the shot was fired.
From the time he squared off (until the time of the gunshot) it was just a matter of of seconds. * * * Possibly two seconds three seconds. Just a short just a short period.
Q. Did you have any opportunity to intervene in that altercation?
A. No, sir. I did not.
Thus, Green testified that he saw no significant fisticuffs before Ratliff drew his weapon and shot Russ and that events occurred so rapidly that he had no opportunity to intervene.
The autopsy report indicated that Russ had been struck on the mouth and elsewhere on the head, supporting the testimony of Ratliff and Draper that Ratliff had struck Russ several times before the firing of the fatal shot. 6
Several experts were called who testified that the fatal shot was fired from a distance of between 18 inches and four feet from Russ' head.
An accident reconstruction expert testified that he had conducted tests on a new gun of the same model as that carried by Ratliff. 7 This expert testified...
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