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Harris v. Harvey

decided: August 20, 1979.


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 75-C-612 -- Myron G. Gordon, Judge.

Before Fairchild, Chief Judge, Cummings, Circuit Judge, and Campbell, Senior District Judge.*fn*

Author: Cummings

This action was brought under the Civil Rights Act (42 U.S.C. § 1983) by a former Racine, Wisconsin, police lieutenant against a Racine County, Wisconsin, judge*fn1 and against Gerald Clickner, Racine County District Attorney. Plaintiff claimed that defendants' actions deprived him of Fourteenth Amendment due process and equal protection of the laws. We are setting out the allegations of the complaint in some detail (and in the same order as the pleader) because the jury found the key allegations sufficiently proved.*fn2

Plaintiff alleged that on January 8, 1974, Dale Vorlob, a paroled felon, was charged with felonious battery for attacking plaintiff with a pistol. On January 11, 1974, Vorlob told District Attorney Clickner that on January 10 plaintiff pistol-whipped Vorlob and threatened him with bodily harm if Vorlob testified against Harris at Vorlob's battery trial. Vorlob was convicted in a jury trial on March 27, 1974.

According to the complaint, Clickner communicated Vorlob's statements to Judge Harvey who urged Clickner to have a complaint sworn out against plaintiff, and on January 13, Clickner contacted the Racine Chief of Police to obtain help in the investigation of Vorlob's charges against plaintiff. However, after an internal investigation the Racine Police Department found Vorlob's charges baseless and therefore initiated no disciplinary proceeding against plaintiff. Nevertheless, on January 23, Clickner, "acting in his official capacity under color of law," maliciously authorized a petition to Judge Harvey for a secret John Doe investigation of the plaintiff pursuant to Wisconsin law. See Wis.Stat. § 968.26.*fn3

Plaintiff alleged that prior to January 9, 1974, Judge Harvey had told Racine Assistant Chief of Police Hagopian that he was going to get that "black bastard," the plaintiff. On numerous occasions prior to January 21, Judge Harvey "under color of law and beyond his jurisdiction" maliciously stated to many people that the plaintiff received preferential treatment and favors from the Racine Police Department because he was black.

On or before January 9, Judge Harvey supposedly "maliciously made racial remarks which were intended to reflect upon associates, friends and attorneys of Harris in an effort to have them disassociate themselves from Plaintiff Harris."

Commencing at 7:30 p. m. on January 29, Judge Harvey presided over the John Doe proceeding where assistant district attorneys authorized by Clickner "under color of law maliciously presented secret testimony against Plaintiff Harris." Plaintiff charged that during that proceeding, Judge Harvey "acted within his jurisdiction as county judge under color of law," maliciously threatening witnesses with prosecution and perjury because they would not incriminate plaintiff.

On January 30, Judge Harvey allegedly informed a newspaper reporter that he was conducting a John Doe hearing at which the plaintiff Vorlob swore that Harris beat and threatened him, and Harvey added that plaintiff would be charged with criminal violations.

On January 31, Vorlob signed three secret complaints against plaintiff, and Judge Harvey, "acting in his official capacity as judge under color of law," maliciously and without probable cause issued an arrest warrant for plaintiff for allegedly violating Wisconsin Statutes §§ 940.20 (misdemeanor: battery), 941.20 (misdemeanor: aiming and pointing firearm) and 943.30 (felony: threatening a witness). On the same date Judge Harvey read the warrants for the arrest of plaintiff over a radio station as well as a press release prepared by defendant Clickner, and maliciously informed the press that plaintiff refused to testify at the John Doe proceeding involving Vorlob's charges against Harris.

The complaint also charged that on February 4, Judge Harvey maliciously stated at plaintiff's initial court appearance that the other Racine County judges wished to be disqualified from trying plaintiff. On the same date defendant Harvey called for the dismissal of plaintiff from his police department job and attempted to have the Chief of Police suspend or fire him. On the next day Judge Harvey allegedly maliciously stated that plaintiff should be forced to take a lie detector test or be fired on the untrue ground that Vorlob had passed such a test.

Before plaintiff's trial on any of the criminal complaints, commencing on February 4, Judge Harvey in public and in the public media commented on the merits of the Vorlob-related criminal charges against plaintiff and publicly called him "a fixer, a briber, and a sycophant."

Supposedly Judge Harvey on March 11 maliciously submitted an affidavit in a legal proceeding making racial and derogatory remarks about plaintiff.*fn4 Both defendants allegedly met with officials of the Wisconsin Attorney General's office and threatened to accuse plaintiff of bribery, ticket-fixing, and other illegal activities in the public press unless the Attorney General would "do something about Harvey."

On February 4, plaintiff was suspended with pay by the Racine Police Department "after being pressured by Harvey," and on February 5 Judge Harvey maliciously accused the Chief of Police of engaging in the cover-up because plaintiff "was not ordered to take a lie detector test and because he was not suspended without pay."

On April 8, Judge Harvey publicly accused plaintiff of being on a paid vacation and termed his defense of the criminal charges against him to be "nonsense." On August 8, Judge Harvey maliciously accused plaintiff of unlawful conduct and publicly wrote that plaintiff was engaging in criminal conduct.

On August 15, Judge Harvey wrote the City Attorney that the police department should take disciplinary action against plaintiff or else Judge Harvey would commence criminal proceedings against him. On September 6, Judge Harvey wrote the City Attorney and accused him of whitewashing plaintiff's "documented" violation of Wisconsin Statute § 946.12(1) (misconduct in office). On November 22, Vorlob told plaintiff and various Racine officials that he did not know who beat him on January 10 and had so told defendant Clickner.

On February 11, 1975, the two misdemeanor complaints against Harris were dismissed by another judge "because of the manner in which ...

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