Appeal from the United States District Court for the Eastern District of Wisconsin. No. 73-C-466 - Myron L. Gordon, Judge.
Cummings, Pell, Circuit Judges, and Campbell, Senior District Judge.*fn*
Plaintiffs are five black residents of Milwaukee, Wisconsin. Two of the defendants are Milwaukee police officers, and the third is a Milwaukee fireman. The City of Milwaukee was an additional defendant but was dismissed as a party.*fn1
Count I of the amended complaint filed on November 12, 1973, was brought under Section 1983 of the Civil Rights Act (42 U.S.C. § 1983).*fn2 Count I alleged that police officers Cary Cameron and Dennis Murphy, and Michael Murphy acting in concert with them, were driving north on North 27th Street in Milwaukee in the early morning of Saturday, June 24, 1972, while four of the plaintiffs were driving in their car directly behind defendants. Defendants taunted plaintiffs with racial epithets and subsequently assaulted them and James Ingram, a bystander and additional plaintiff. Thereafter the five plaintiffs were arrested and taken to jail. Although defendants sought to bring various charges against plaintiffs, they were never formally charged.
The complaint asserts that defendants, "without legal justification and without warrants and without probable cause and under color of law," deprived plaintiffs of their rights to be free from unlawful seizures, arrests and assaults as guaranteed by the Fourth and Fourteenth Amendments. Plaintiffs also claim that defendants' malicious attempt to have false criminal charges placed against plaintiffs violated their Fourteenth Amendment rights. They assert that without legal cause defendants used malicious, unlawful, excessive, unreasonable and violent force in seizing and assaulting plaintiffs, in violation of their Fourth and Fourteenth Amendment rights. The willful and unlawful assaults inflicted on plaintiffs were also said to contravene their rights to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments. The Thirteenth Amendment was said to have been violated because defendants summarily inflicted punishment upon plaintiffs as a result of their Afro-American ancestry. The defendants were charged with acting under color of state law and under color of city ordinances.
The second cause of action based on 42 U.S.C. § 1985(2) and (3) has been abandoned because of the one-year statute of limitations contained in 42 U.S.C. § 1986. (See defendants' Br. 8.) Count III was a pendent claim under Chapters 261 and 262 of the Wisconsin Statutes.
Four of the plaintiffs sought compensatory damages in the amount of $20,000 for mental distress and impairment of reputation and punitive damages of $200,000, whereas plaintiff Earl Davis, who had been treated at a hospital because of injuries suffered on this occasion, sought $500,000 compensatory damages and $1 million in punitive damages. Plaintiffs also sought attorneys' fees and costs.
At the conclusion of plaintiffs' evidence at a bench trial, the defendants moved for dismissal on the ground that plaintiffs had not shown "a deprivation of a constitutional right or a right secured by the laws of the United States" (App. 4). In granting the motion on April 29, 1976, Judge Gordon assumed that the acts were "'under color' of state official conduct" (idem) but dismissed the action solely because of Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155, which had been decided a month before the trial. We disagree that Paul is controlling and therefore reverse.
Viewing the evidence favorably to the plaintiffs, as we must upon a motion to dismiss, the plaintiffs showed that four of them (Mr. and Mrs. Earl Davis, Joyce Wesley and J. B. Clay) were in the Davis' automobile heading north on North 27th Street in Milwaukee around 2:00 a.m. on June 24, toward a restaurant. When they reached the intersection of North 27th and West Galena Streets, passenger Michael Murphy in the car ahead of them yelled, "Dim your bright lights, niggers." Dennis Murphy was driving and Cary Cameron was in the front passenger seat. Michael Murphy was in the rear seat. After the traffic light changed to green and the cars continued north on 27th Street, Michael Murphy continued to hurl racial epithets at plaintiffs. At a red light at 27th Street and West North Avenue, both cars were stopped with defendants' car on the left of plaintiffs. Michael Murphy said, "You niggers caught us. Do you want to fight?" He continued to call plaintiffs "niggers" and jumped out of his brother's car and began jumping up and down on the trunk of the Davis automobile. Plaintiff Earl Davis said, "Let me get out and get this man off the trunk of my car", whereupon Cary Cameron called plaintiffs "niggers" and threw something causing glass to shatter on driver Sandra Davis' lap.
When Earl Davis sought to remove Michael Murphy from the trunk of the Davis car, both men began wrestling. Dennis Murphy came to his brother's assistance, with both Murphys fighting Earl Davis. Plaintiff Clay tried to pull one of the Murphys off Earl Davis.
When Dennis Murphy and Cary Cameron left their car, they identified themselves as police officers and displayed badges. Cameron then entered the fray. Both Dennis Murphy and Cameron displayed their guns. When Clay pulled one of the Murphys off Davis, Cameron hit Clay who responded by hitting Cameron with a drinking glass. Cameron began to beat Earl Davis, who by then was prone with his hands behind his back, on the head with a pistol. Dennis Murphy helped Cameron beat Earl Davis. Mrs. Davis took Joyce Wesley's purse to hit Cameron in order to stop him from hitting her husband, and she was thrown back on the sidewalk first by Dennis Murphy and then by Michael Murphy, who lined her, Joyce Wesley and Clay against a wall with a cocked gun in their faces. Cameron slapped Mrs. Davis in the face and Michael Murphy kicked Earl Davis in the face. Dennis Murphy ripped out the entire front of Joyce Wesley's dress, partially baring her breasts because he wanted to see their size.
Plaintiff Ingram, a taxi driver, was on his way to the same restaurant where the Davis party was headed and heard Sandra Davis screaming. He talked to Sandra Davis but did not give her anything nor touch her. He left her to go into the restaurant. While he was entering the restaurant, Michael Murphy tore all the buttons off Ingram's jacket, turned him around and wrestled him to the ground after pushing him against the wall, later kicking him in the face while he was handcuffed.
Thereafter, uniformed police officers arrested the five plaintiffs and took them to jail where they were held ten hours. None of the plaintiffs was ever charged with an offense growing out of the incident. Upon his release, Earl Davis' head wounds were stitched at a hospital. Because of his ...