Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 77-281-C -- Cale J. Holder, Judge .
Before Fairchild, Pell and Sprecher, Circuit Judges.
Byron L. Richardson was shot and killed in a struggle with an Indianapolis police officer in the course of his arrest following a high speed automobile chase. The plaintiff, Tandy Richardson, Jr., the decedent's personal representative, appeals from a judgment of the United States District Court for the Southern District of Indiana which granted a directed verdict against him on his claim under 42 U.S.C. § 1983, in favor of the defendants, the City of Indianapolis; the Indianapolis Police Department (I.P.D.); the Marion County Sheriff's Department; Mark Myler, Robert Yarnell, Schuyler Atkins, and Linden Lucas, individually and as Deputy Sheriffs of Marion County; Phil Smith and Robert Fouty, individually and as police officers of the Police Department of Speedway, Indiana (referred to collectively as the non-shooting defendants). The plaintiff also appeals from the directed verdict in favor of Richard Blake, as a Police Officer of Indianapolis, Indiana, and from a jury verdict in favor of the defendant Richard Blake individually (the shooting defendant).
As to the non-shooting defendants, the plaintiff contends that the trial court erred by weighing the evidence and substituting its judgment for that of the jury, and thereby removed from jury consideration questions upon which reasonable jurors could have disagreed. As to the shooting defendant Blake, the plaintiff alleges that the trial court committed several errors; first, that the court granted improperly a directed verdict in favor of Blake "as a Police Officer of the City of Indianapolis"; second, that the court wrongfully denied a directed verdict against Blake at the close of all the evidence; third, that the court improperly instructed the jury; fourth, that the court improperly refused the plaintiff's tendered jury instructions; and fifth, that the court failed to excuse a juror for cause when it should have done so. The plaintiff also contends that the trial court erred by excluding from the evidence a paternity judgment relating to the decedent's illegitimate child. The plaintiff also seeks award of attorney's fees under 42 U.S.C. § 1988.
At 1:12 a. m., May 14, 1975, Indianapolis Police Officer Richard Blake issued a speeding ticket to the decedent, Byron Richardson. Some 45 minutes later, Blake, who had remained at the same location, observed the Richardson car again speed past. Blake pursued the car, and alerted the dispatcher of the Indianapolis Police Department. This broadcast was heard by other police officers of surrounding jurisdictions who joined the pursuit, which reached speeds of up to 100 miles per hour. The pursuers attempted to slow or to stop Richardson, but he eluded them until two Sheriff's Department squad cars blocked a roadway on an exit ramp at the Indianapolis International Airport, whereupon Richardson stopped his vehicle. The pursuing vehicles surrounded Richardson's car, and several officers got out of their cars and approached cautiously. At least three of the officers had their handguns drawn. Blake and another officer ordered Richardson out of the car. He responded only by laughing. Blake and Corporal Myler of the Marion County Sheriff's Department approached the car with their guns drawn. All the other officers reholstered their guns at this point. Blake and Myler removed Richardson from the car. Blake used his left hand only, keeping his revolver, pointing skyward, in his right hand. Richardson began to struggle with the two officers. Blake's gun discharged, striking Richardson in the head. Richardson died immediately. His personal representative filed this suit alleging that the defendants had unconstitutionally deprived the decedent of his rights under color of state law in violation of 42 U.S.C. § 1983. The trial court granted a directed verdict in favor of the non-shooting defendants, and in favor of Blake as a police officer, and a jury found in favor of Blake acting as an individual. The plaintiff appeals from the judgment entered on those verdicts.
The plaintiff's first assignment of error is that the trial court improperly granted a directed verdict in favor of the non-shooting defendants and the shooting defendant in his capacity as an officer of the I.P.D. The plaintiff contends that the trial court failed to follow the proper rule concerning the grant of a directed verdict, which requires that the trial court view the evidence and make all inferences in the light most favorable to the non-moving party, and that if reasonable jurors could differ on the conclusions drawn therefrom, the case must go to the jury. See, e. g., Hampton v. Hanrahan, 600 F.2d 600, 607-08 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754, 100 S. Ct. 1987, 64 L. Ed. 2d 670 (1980). While this is the proper formulation of the directed verdict standard, it is nonetheless clear that the trial judge must determine whether the party with the burden of proof has produced sufficient evidence upon which a jury could properly proceed to a verdict, and that a mere scintilla of evidence will not suffice. Hohmann v. Packard Instrument Co., 471 F.2d 815, 819 (7th Cir. 1973). Thus on appeal the party against whom a verdict has been directed has the onus of demonstrating the existence of a conflict in the evidence or the inferences to be drawn therefrom sufficient to justify submission of the question to the jury. Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098, 1102 (5th Cir. 1973).
We turn therefore to each of the plaintiff's claims in turn to determine whether there was evidence upon which reasonable jurors could have disagreed.
The first category of issues relates to the participation in the high-speed pursuit. The plaintiff's complaint asserted that the governmental and police force defendants wrongfully failed to interrupt the high-speed chase and thereby participated in the exercise of unreasonable and excessive force in violation of the decedent's civil rights; that the City of Indianapolis and its police force wrongfully exerted such force by inviting and encouraging the other defendants to join in the chase; that the Indianapolis defendants should have known that no high-speed chase was necessary because they knew the decedent's name and address from the earlier speeding ticket and thus could have picked him up later, and that therefore the continuation of the chase was exertion of unreasonable and excessive force; that the other defendants exerted such force by joining the chase in the absence of information that a warrant was out for the defendant or that he was being pursued for the commission of a felony.
The trial court made the following findings of fact and conclusions of law on the high-speed chase issue:
while engaging in ... high speed flight decedent was pursued by multiple police officers of various police agencies in the proximity of the roads and highways used by decedent in the flight of decedent in his vehicle. During such flight the decedent committed other alleged misdemeanor traffic violations of reckless driving, speeding and failing to obey multiple police officers' orders to decedent to stop his motor vehicle.
... It was the legal obligation of the defendant officers to arrest the decedent for the many violations of the Motor Vehicle Code of Indiana. It was the duty of the decedent to stop his vehicle when he was signaled to stop by each and all of the defendant officers. It was the duty of the defendant governmental units and agencies to instruct their employee defendant officers to pursue the decedent when he resorted to high speed evasive flight to avoid arrest for each of his crimes and for inter agency cooperation to apprehend.
No property damage or personal injuries were incurred by decedent in the defendants' pursuit of decedent in his high speed ...