Webster v. City of Houston, 81-2007

Decision Date28 October 1982
Docket NumberNo. 81-2007,81-2007
Citation689 F.2d 1220
PartiesJohn Russell WEBSTER, et al., Plaintiffs-Appellees Cross-Appellants, v. The CITY OF HOUSTON, Defendant-Appellant Cross-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

James K. Gardner, Timothy James, Houston, Tex., for defendant-appellant cross-appellee.

Harvill & Hardy, G. P. Hardy, III, Alison Pettiette, Houston, Tex., K. Michael Mayes, Conroe, Tex., for plaintiffs-appellees cross-appellants.

Appeals from the United States District Court for the Southern District of Texas.

Before BROWN, GOLDBERG and TATE, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Television police dramas paint a frightening and often bloody picture of life. The suffering of innocent victims and their families nightly invades our living rooms, subject only to the viewer's freedom to change the channel. In this case we lack that freedom, for this episode involves a true story. The names have not been changed; and in the final scene, the innocent, far from being protected, lay on a city street, dying, while Houston police officers debated whether to cover up their misdeeds by placing a "throw down" gun at the victim's side. We find that the evidence supports the jury's verdict in favor of the victim's parents in this § 1983 claim against the City of Houston but, since the jury misunderstood its instructions, we remand for a new trial as to damages alone.

Randy Webster, a 17-year old native of Shreveport, Louisiana, stole a van from a Dodge dealership on the Gulf Freeway in Houston, Texas. Houston police officer Danny Mays spotted the van and gave chase. Officers Holloway and Olin, responding to his radioed calls, joined in. A Houston taxi driver, trying to do his part, tried to force the van off the road. Eventually, near the intersection of Telephone Road and Hall Road in southeast Houston, Randy lost control of his vehicle. It spun out of control and came to rest facing the direction he had come. The police cars screeched to a halt nearby. Mays, Holloway and Olin ran up to the van and ordered Randy out.

At this point, the testimony diverges. According to the initial police report, Randy got out of the car with something in his hand. He resisted the officers' attempt to place him under arrest; a struggle ensued; and, as Officer Mays attempted to subdue him, his gun misfired, fatally wounding Randy in the head.

Ten minutes later, the story had changed. The officers related that Randy emerged, armed, from the van and was shot immediately. Whichever story one prefers, when the ambulance arrived, a gun rested in Randy's hand.

The truth, which came to light after a long, and, for Randy's parents, agonizing nightmare of involvement with the Houston Police Department (HPD), is not pleasant. The taxi driver who had given chase, standing near his cab, and a local resident both saw the events. They presented a different story. Dolan, the taxi driver, testified as follows:

A: After the van spun around and came to a stop the driver had his hands up like this, you know, just about head level and he was trying to come out of the van at this time....

Q: Did you at any time see Randy put up any resistance to what was going on there?

A: No, sir. I did not.

Q: And before the gun was fired do you say Randy was somehow brought to the ground? ...

A: He started screaming after they had him on the ground because they were pulling his hair.... He said, "O.K., man. O.K. All right. I have had enough." And that's about all he said before he was shot.... And I had told (police) that I had saw everything, and even when the boy was laying there, there was no weapon beside him. There was no weapon in his hand when they pulled him over, because I was there.

William G. List, who lived nearby, confirmed this account. I saw the boy get out of the van with his hands not clear up, but approximately, you know, raised to the point that you see them raised.... He still had to duck his head to get of the van and he still had his hands in the air, so they weren't, you know.... He got out.... The boy got out, the police officer blocked my view by standing in front of him or being in front of him, but the boy, you could still see, was bigger than the police officer. So he either kicked him or hit him or whatever, I don't know, but the boy went to the ground. And a few seconds later I heard gunshot go off.... This all happened within seconds. There was no time for any fighting or struggling, you know.

Officer Olin, under questioning by counsel, verified this account.

Q: Mr. Olin, at the time Randy was shot in the back of the head, he was pretty much pinned to the ground, wasn't he?

A: Yes, yes.

Q: He wasn't a threat to you or Mr. Mays, was he?

A: I can't speak for Mays. I didn't recall him to be a threat to myself.

Q: He wasn't armed, was he?

A: No....

Q: He was pinned on the ground at the time he was shot, wasn't he?

A: Yes.

Q: He had his hands behind his head, didn't he?

A: I don't recall where his hands were.

Q: He wasn't offering any resistance, was he?

A: Not to me....

Q: Mr. Olin, whatever happened that night, there is no doubt in your mind that the force that was being used by you and Mr. Mays was excessive, correct?

A: Correct.

Knocked to the ground by the officers, Randy gave no resistance and was shot within seconds. He had no weapon, a 17-year old boy against several police officers.

Tragedy did not deter the officers from considering practicalities. What to do about the "mess"? According to Officer Holloway, "Tommy (Olin) was standing there talking ... and Byrd walked up to me and asked if we needed a throw down.... I said, 'I don't know.' That would be up to Danny Mays and Tommy Olin. It was their shooting and it is their mess."

A "throw down", the starring role in this tragedy, is a weapon which police officers, having killed (or wounded) an unarmed suspect, can put at his side to justify the shooting. How common was this practice? The officers, testifying at trial, made clear that a throw down was "common knowledge". Officer Holloway: "I had several officers tell me that if I needed a throw down that they had one or knew where they could get one." He continued, "I know that maybe the Department and the City and the news media were trying to say that we were the first ones that admitted this throw down, but that has been a part of police work long before I came on the streets." Officer Dillon concurred. "It would be brought up like when (instructors at the Police Academy) would be sitting at various crime scenes for instruction, it would be casually mentioned that if you ever shot anyone accidentally, well, you had best have something to lay down to protect yourself." Officer Byrd, who provided the throw down, explained,

Q: How many officers or what percentage of officers either carried a throw down in 1977 or had access to a throw down?

A: I would say 75-80% of them.

Q: Was that common knowledge on the force back in February of '77?

A: Yes.

Q: It wasn't unusual at all at the Webster scene that there were two officers that had a throw down?

A: It wasn't unusual, no.

Q: Pretty much common practice?

A: Most of the officers either carried a knife or a gun.

Q: It was pretty much an accepted practice that there would be a throw down at any one given situation if needed?

A: Right. Not any set policy or anything like that, but it was just a situation just to cover yourself on an individual basis.

Indeed, as pointed out at oral argument, the mere fact that everyone understood the term "throw down" demonstrated its widespread use.

Why employ a throw down? As Holloway explained, "I had had nobody say anything definite about what was going on or anything and what was going to be done to protect Mays...." (emphasis added) Protection of an officer, then, was the name of the game. "I think that it was known that if you got in trouble a throw down could be obtained.... It is not like we would go around thinking about it all the time, it is just in the back of your mind." Holloway added: "I think that would be the same thought in any officer's mind ... to protect the officer from shooting somebody that was unarmed." Questioning from counsel developed this point:

Q: But the fact that you and your partner had discussed the burglar situation, it was at least in your minds that there may be an accidental killing and a throw down could be used?

A: Yes, sir.

That throw downs existed might be common knowledge, a fact of life at that time for Houston police officers, but did officers in fact use them? Officer Dillon replied in the affirmative:

Q: So there is at least one other case two years prior to Randy's situation where a throw down weapon was used as far as you know?

A: Yes, sir.

And Officer Byrd conceded, "It was just common fact. It had happened before." As for his superiors, "They don't directly condone. They know it happens."

The Websters did not believe the official version of that night's events. Mr. John Webster, Randy's father, came to Houston to find out the truth. Met at every turn with evasion if not hostility, he became convinced that the Houston police were covering up. He was right.

The evidence as to cover-up, while circumstantial, is no less damning. Dolan, the taxi driver, went to police headquarters the morning after the shooting to give a statement. A Lieutenant Eickenhorst interviewed him and later advised Police Chief Bond to "disregard" Dolan's account. Although investigating officers took photographs of the scene, no one bothered to study them. Officers Marriott and Binford, assigned to the no doubt unpleasant task of investigating their fellow officers, interpreted their mission as one of vindication. They never studied the autopsy report, which plotted the path of the bullet and proved that Randy was on the ground when shot. Nor did they order trace metal tests, ballistic studies, or a trigger pull examination-routine parts of such an...

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