Swans v. City of Lansing, 5:96-CV-56.

• Decision Date: 09 November 1998
• Docket Number: No. 5:96-CV-56.,5:96-CV-56.
• Citation: 65 F.Supp.2d 625
• Parties: Eddie B. SWANS, Sr., as Personal Representative of the Estate of Edward Swans, Deceased, Plaintiff, v. CITY OF LANSING, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

65 F.Supp.2d 625

Eddie B. SWANS, Sr., as Personal Representative of the Estate of Edward Swans, Deceased, Plaintiff, v. CITY OF LANSING, et al., Defendants.

No. 5:96-CV-56.

United States District Court, W.D. Michigan, Southern Division.

November 9, 1998.

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Mark R. Bendure, Bendure & Thomas, Detroit, MI, Geoffrey N. Fieger, Fieger, Fieger & Schwartz, PC, Southfield, MI, for Plaintiff.

Michael S. Bogren, Plunkett & Cooney, PC, Kalamazoo, MI, Mary Massaron Ross, Plunkett & Cooney, P.C., Detroit, MI, for Defendants.

OPINION

ENSLEN Chief Judge.

This matter is before the Court on Defendants' Motion for Remittitur, Motion for New Trial, Motion for Judgment as a Matter of Law and Plaintiff's Motion for Costs and Attorney Fees. The Court addresses these Motions in the context of the evidence heard by the jury at trial.

I. Summary of Trial Testimony

This case was tried to a jury over twenty-seven days. The jury heard, saw, and touched extensive evidence, including hundreds of documents, photographs, videotape, physical restraints, autopsy reports, the lay and expert testimony of over 30 witnesses, and site visits to the Lansing City Jail, the Volunteers of America homeless shelter and King's Kids Day Care Center. The jury was charged by the Court and after two days of deliberations reached its verdict on April 15, 1998. The jury's verdict found for the Plaintiff and against the Defendants as follows: against all Defendants, jointly and severally, for actual damages in the amount of $9,800,000.00 and against the individual Defendants individually for punitive damages in the following amounts: Michael Mezzano, $1,000,000.00; Miklos Szilagyi, $500,000.00; Glenn Sherman, $275,000.00; Joseph Diaz, $275,000.00; William Fabijancic, Jr., $275,000.00; Kevin Moore, $275,000.00; Patricia Layne, $225,000; and Donald Viele, $300,000.00.

Defendants have filed Motions to reduce or set aside the jury's verdict. The Motions require consideration of the evidence and argument at trial in a light most favorable to the Plaintiff. Williams v. Nashville Network, 132 F.3d 1123, 1130 (6th Cir.1997). Considering the evidence at trial in a light most favorable to the Plaintiff, the evidence at trial established the following events:

On February 2, 1996, Edward Swans was a middle-aged, 5'8", 260-pound, African-American man with a record of honorable service in the military and an honorable discharge with a partial service-related disability of schizophrenia. (Trial Testimony at 10-42, 16-30.) According to his family, when Edward Swans' condition was treated with medication, he functioned normally. (T.T. at 16-31) When untreated, he did not. (Id.) As a consequence, prior to February 2, 1996, he had a history of multiple hospitalizations with the Veteran's Administration and a history of arrests in the City of Lansing.

On the morning of February 2, 1996, at 5:00 a.m., Edward Swans appeared at the third floor of the Lansing City Jail, complaining of an assault. At the time, the weather was extremely cold with a 27-degree below zero wind chill (F.). (T.T. at 5-152.) Edwards Swans presented himself not wearing a shirt, coat or socks. (T.T. at 5-186.) Officer James Thornburg questioned Swans' story about being assaulted and thrown out of his house, saying "you walking that distance (three miles).... I'm surprised you're alive." (T.T. at 5-187.) To which Swans replied, "I have Jesus in my heart." (Id.) His complaint was deemed "unfounded" by Officers Fred Tabor and Thornburg. (T.T. at 5-189.) At that time, Swans pleaded to "go to jail" but was instead given a shirt and taken to Volunteers of America ("VOA") for breakfast at approximately 6:00 a.m. (T.T. at 5-189 to 5-191.) Before taking Swans to the VOA, officers gave him a preliminary breath test, which tested at .036. (T.T. at 5-177.)

According to Steven Souza (an addiction counselor for VOA), upon Swans' entry to VOA, he reeked of alcohol, was uneasy, anxious, manic, disoriented, irrational and confused. (T.T. at 10-8, 10-12 to 10-15.) Swans during his stop at VOA had contact with case manager Robert Lindley, who described Swans on that day as "not having all his marbles." (T.T. at 10-44.) Swans apparently desired at that time to be taken to the Veteran's Hospital in Battle Creek and acted as if a van might be taking him to the hospital, though one was not so scheduled. (Id.) He left VOA at 10:15 a.m. after the van had failed to appear. (T.T. at 10-48.)

At 11:00 a.m. that morning, Edward Swans entered the King's Kids Day Care Center on 2003 West Main apparently to use their telephone and warm himself. (T.T. at 20-197.) The Day Care was located close-by to a residence or former residence of Edward Swans. The location is approximately three miles from the Lansing City Lockup. (T.T. at 16-188.) According to operator of the Day Care, Ann Benson, Swans had "a wild look." (T.T. at 20-197.) According to her, he had icicles hanging from his nose and was without a coat (though not much later he was seen by her wearing a coat). (T.T. at 20-220.) He then left the building, picked up a pickaxe and was seen talking to himself. (T.T. at 20-201.) Swans began knocking at the door with the pickaxe at which time the police were summoned by 911 call of a Day Care worker. (Exhibit 48A; T.T. at 6-69.) Over the 911 call, the worker complains of a man with a pickaxe who is "kind of crazy." (Exhibit 48A.) Officer Donald Viele, Officer David Dickson and Detective William Debnar, in that order, arrived at the address. (T.T. at 16-143 to 16-144.) One of the officers responding to the call describes the suspect over the radio as a "10-96." (Id.) The 10-96 code, according to officers of the Department, refers to a mental patient or person who is otherwise "whacked out there." (T.T. at 6-70.) Upon his arrival, Officer Viele stopped Swans and obtained identification from Swans' wallet. (T.T. at 16-149, 20-204.) Swans' wallet included identification cards among them a card identifying Swans as a Veteran's Administration patient and instructions to call Mrs. Swans. (Exhibit 73; T.T. at 16-176 to 16-178.) Swans then ran and was pursued by officers. According to Officer Dickson, he ordered Swans to stop and arrested Swans for failing to obey a lawful order, assaulting an officer (for kicking Officer Viele) and resisting arrest. (T.T. at 11-169 to 11-170.) Dickson described Swans as confused, disoriented and as having foam coming from his mouth. (Exhibit 8; 11-171 to 11-172.) Viele then transported Swans to the Lansing City Jail, during which time Swans "talked to God." (T.T. at 16-186 to 16-187.)

Upon arrival at the Jail, Detention Officer Joseph Diaz attempted to book Swans at the desk. (T.T. at 16-177 to 16-178.) Swans had several previous contacts with detention staff (including Detention Officers Diaz, Fabijancic, Sherman and Layne) relating to earlier bookings. (T.T. at 17-193, 1-197 to 17-198.) During at least one of these contacts, it was entered on the Police Department computer that Swans took Thorazine. (T.T. 11-85.) At the time of anticipated booking, Swans was handcuffed with his hands behind his back. (T.T. 17-206.) The computer was not checked at the time of Swans' booking. (T.T. at 17-204 to 17-205, 12-181.) Swans uttered words to the effect "you're going to shoot me" and then stood silent. (T.T. at 10-109, 10-187, 6-66.) Swans was told by Officer Diaz to face either the booking counter or the cage behind him. (T.T. at 17-210.) When he shook his head "no," Diaz grabbed his arm and attempted to move him toward the booking counter. (Id.) In the process, Swans was moved against the cage. (T.T. at 10-110.) Detention Officers Kevin Moore, William Fabijancic, and Sergeant Miklos Szilagyi then entered the booking area and with Diaz responded to an order of one of the officers to "take him down." (T.T. at 10-110.) Upon Swans being taken down, his foot struck Sgt. Szilagyi in the face. (T.T. at 10-115.) From that point forward, Detention Office Fabijancic used, in his own words, "pain compliance" techniques to subdue Swans. (T.T. at 17-60.) Officer Fabijancic used wrist locks, transport wrist locks, hypoglossal pressure (pressure under the chin), mandibular angle pressure (pressure with the thumb behind the ear), bronchial plexus clavicle notch pressure (pressure to a nerve around the shoulder blade), and infraorbital pressure (pressure on a nerve near the nose) to obtain compliance. (T.T. at 17-58, 17-64, 17-72, 17-83.) According to Fabijancic, his use of these techniques was approved by his Department. (T.T. at 17-83 to 17-84.) According to some of the officers, they attempted to place Swans in a restraint chair in the 6 cell block in accordance with Department policy of using force based on a continuum of force and necessity. This claim, however, was contradicted at trial by the short duration of time that officers had for use of the restraint chair. (T.T. at 10-122.) It was further contradicted by the fact that Officer Dickson, who visited the cell block after the alleged use of the restraint chair, testified that there was no chair in the cell block. (T.T. at 11-159 to 11-160.)

In any event, the officers involved agree that what followed was the use of their "kick — stop restraint" mechanism on Edward Swans. The kick-stop restraint is a method of restraining a prisoner with legs and arms tied behind the prisoner's back to a strap on the prisoner's waist. According to Officer Diaz, the City of Lansing had used such methods of prisoner restraint on hundreds of prisoners in the Jail over a six-year period. (T.T. at 18-26.) According to the manufacturer of the kick-stop restraint system, prisoners on whom the device is used should not be placed face-down due to the risk of suffocation. (T.T. at 17-145; Exhibit 78; Exhibit 64.) Nevertheless, the Betamax videotape showing the...