Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-366 - Julius J. Hoffman, Judge.
Before Swygert, Circuit Judge, Miller, Judge,*fn* and Tone, Circuit Judge.
Plaintiff-appellant Wallace Davis appeals from the judgment of the district court, entered on the jury's verdict, that defendant-appellee Joseph Freels was not liable for violation of plaintiff's rights under 42 U.S.C. § 1983;*fn1 also from an order denying plaintiff's motion for judgment notwithstanding the verdict and from an order denying his motion for a new trial.
On March 8, 1976, at about 6:00 A.M.,*fn2 Freels, a Chicago police officer for nine years, and his partner, Joseph Daube, while on patrol in a patrol wagon received a radio communication based on a citizen's complaint that the men in a blue Camaro with a black vinyl top (license plate number given) were wanted in connection with a shooting incident. While en route to the scene of the shooting (Freels driving), the two police officers observed a car answering the description drive by in front of them. (Plaintiff was, in fact, driving the car with a passenger, Winston Fontenot.)*fn3 The police officers followed the car for two blocks at approximately a half-block interval. From every indication Freels had, the men in the car were not aware that they were being followed. Davis drove the car into an alley approximately one hundred feet and turned into a lot adjacent to an auto body shop allegedly owned by him. Freels drove to the entrance to the lot, and both officers then got out and walked into the lot with their weapons drawn. Davis and Fontenot were still near the rear of their car. With Davis in the lead, they walked approximately twenty feet from their car to a point alongside a green Chevrolet parked nearby in the lot. Freels, who was approximately ten to fifteen feet away from the green Chevrolet, ordered Davis and Fontenot, who were facing parallel to the green car, to put their hands up and then, according to Fontenot, he and Davis were told: "Walk over to the car (the green Chevrolet) and put them (their hands) on the car." (This necessitated turning to their right.) Freels testified that Fontenot stopped, turned, and put his hands on the car, while Davis "stopped and looked at me and then he started turning . . . towards the car." Freels' testimony continued:
Q. As he started to turn, did you have either of his hands in view?
A. Before he started to turn, I had both his hands in view.
Q. As he started to turn . . . did you have either of his hands in view?
Q. Did you have his right hand in view?
Q. All right, you told us he started to turn, and then what happened?
A. As he was turning, I saw a sudden motion with his right elbow in a backward direction.
Q. What did you do when you saw this sudden motion backward of his right elbow?
A. . . . I shot Mr. Davis (in the back).
Q. What happened after that?
A. I walked up to them. I searched Mr. Davis for a weapon; I found none. I stepped over and searched Mr. Fontenot for a weapon; I found none on him. Then I handcuffed Mr. Fontenot.
Later, over objection, Freels was asked: "Why did you fire your weapon on this morning at Wallace Davis?" He answered: "I believed he was going for a gun." He also testified that he "consider(ed) everybody armed, unless proven otherwise"; that Davis was "12 to 15 feet away" when he shot him; and that in his judgment there was no time to fire a warning shot.*fn4
Freels further testified as follows:
Q. Now, at the time that you saw the elbow right elbow move back suddenly, was his body in the turn or in the motion?
Q. And as Fontenot stood, where were his hands?
A. They were on the car, sir.
Q. On the roof of the car?
Q. And did Wallace (Davis) at any time put either hand on the ...