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Bell v. City of Milwaukee

September 4, 1984


Appeals from the United States District Court for the Eastern District of Wisconsin. No. 79 C 927 -- John W. Reynolds, Judge.

Author: Cummings

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and KELLEHER, Senior District Judge.*fn*

CUMMINGS, Chief Judge. The appeals in this extraordinary case present several important issues involving the Reconstruction period civil rights statutes, 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and their interplay with state law, along with procedural and evidentiary issues. Defendants Thomas Grady, Jr., City of Milwaukee, Howard Johnson, and Edwin Shaffer appeal from the jury verdict and judgment of the United States District Court, Eastern District of Wisconsin, in a trial extending more than ten weeks, finding that Grady as an officer of the Milwaukee Police Department deprived Daniel Bell and his family of their constitutional rights by unlawfully shooting and killing Daniel Bell on February 2, 1958, under color of state law. Defendants also appeal the finding that Grady, Chief of Police Johnson, and Detective Sergeant Shaffer unlawfully conspired to conceal the true facts of Daniel Bell's death. Defendants appeal the various components of the judgment of $1,590,670 in favor of plaintiffs Patrick Bell, Sr., Alfonzo Bell, Doffer Bell, Eddie Bell, Ernest Bell, Henry Bell, Jimmy Bell, Joseph Bell, Lawrence Bell, Roosevelt Bell, Sylvia White Bell, and Walter Bell, the brothers and sister of Daniel Bell, as well as to Patrick Bell, Sr. as special administrator of both the estate of Daniel Bell and the estate of Dolphus Bell, Daniel's deceased father. Defendants raise several other issues, and plaintiffs cross-appeal. We affirm in part and reverse in part.


The rather substantial body of facts, relevant to the many issues raised on appeal, is as follows:

On Sunday, February 2, 1958, Milwaukee Police Officers Thomas Grady, Jr. and Louis Krause met by chance at approximately 8:30 p.m. at the corner of North 7th Lane and West Wright Street. The officers stopped their motorcycles at the curb (both were assigned to traffic duty at the time) and each smoked a cigarette and talked. Krause claimed that Grady at this time told Krause he needed some more arrests that night, so that he was going to check some vacant homes and arrest some "niggers."*fn1

Grady saw an automobile pass that did not have a taillight. He started his motorcycle and pursued the car, Krause following close behind. Grady stopped the car east of the above intersection. Grady testified that as he approached the car, he believed that the driver fit the description of a man wanted for armed robbery listed on a Milwaukee Police Department daily bulletin. Suddenly the driver's door swung open and the driver jumped out and ran to the north curb of the West Wright Street and then ran east. The runner, Daniel Bell, said nothing and held nothing in his hands. The officers pursued Bell to the intersection of West Wright and North 6th, where Bell ran north on 6th. In the course of the chase both officers yelled "halt" and fired several warning shots upward into the air.

Krause commandeered a car proceeding south on 6th Street, ordered it to turn around at the intersection, proceeded north, and picked up Grady. The driver was behind the wheel, Krause in the middle, and Grady next to the door. Both officers had their revolvers in their hands. When the car was just north of the fleeing Daniel Bell, it slowed down and Grady and Krause jumped out of the car. Grady, running ahead of Krause, mounted a snowbank and yelled at the person to stop running. Bell ran toward the house located at 2650 North 6th Street and then toward the southwest corner of the house. As Grady caught up with Bell, he still had his loaded revolver in his right hand. He extended his right hand to grab the fleeing Bell by the right shoulder and as he did so the gun discharged, shooting Bell in the upper back.*fn2

Grady holstered his revolver, took off his glove and felt the outstretched wrist of Daniel Bell and said "I think he's dead." Krause took off his glove and reached with his right hand to the jugular vein on the neck, felt no pulse, and said, "I guess you're right. He's dead." Krause testified at trial that Grady then said, "He's just a damn nigger kid anyhow." Grady denied making the statement.

At this time a citizen witness, William Hochstaetter, who lived directly across the street and heard the shot, went outside and across the street to where Bell lay on the service walk in the presence of the two Milwaukee police officers. According to his testimony at the coroner's inquest subsequent to the shooting, Hochstaetter looked at the body and observed no knife in Bell's hands. Hochstaetter, after being told by the officers to move on, watched from his window, but his view of Bell's body was obstructed by the two officers leaning over Bell.*fn3

Grady pulled out a small knife from his pocket, but Krause told him "that knife isn't big enough, Tom." Grady closed the knife, placed it back in his jacket pocket, and produced a larger pocket knife. Krause approached the nearby house in order to call the district station. As Krause was waiting at the front door of the house for someone to answer his knock, he saw Grady place the knife in Bell's right hand and close the hand around the knife. Krause was then let into the house, where he used the telephone to call the district station and to report that someone was shot.

After Krause returned, he and Grady had a conversation which "dealt with the story they would tell people in charge, officials, on what happened."*fn4 They decided to say the fleeing person yelled when he jumped out of the automobile, "You won't catch me, I'm a holdup man!", and that he was armed with a knife.*fn5

Police officers and detectives began to arrive within minutes after the shooting. Among those arriving at the scene were defendant Detective Sergeant Edwin Shaffer and uniformed police officers Detectives Russell Vorpagel and Howard Hughes. Shaffer asked Krause "what happened" and Krause responded "Sarge, we shot a guy." Shaffer told Krause to go sit in Shaffer's car. Uniformed officers outlined the body in the snow with chalk and the body was removed by a police ambulance crew. Detectives Vorpagel and Hughes talked to Grady, dispatched officers to canvass the neighborhood for witnesses, took measurements, and made a diagram at the scene. The officers recorded the names and addresses of several persons in the area, but no one interviewed that evening saw or heard anything. (William Hochstaetter was not located until later.)

Krause testified that when Shaffer got into the car Shaffer said, "Louis, I want to know the truth. I want to know exactly what happened here tonight." Krause then told him in a general fashion that Grady spotted a car without a taillight and pursued it, a man jumped out of the car and they caught up with him and Grady had shot him. Plaintiffs claim Krause told Shaffer the knife had been planted, but this claim is not supported by Krause's testimony.*fn6 Shaffer testified that at no time did Krause tell him Grady had planted the knife; had Krause done so, Shaffer stated he would have taken Grady into custody.

Vorpagel testified that at the scene he asked Krause and Grady what had happened, and that Grady responded that he observed a car with a burned-out taillight, he stopped it, a man jumped out of the car and ran away, Krause commandeered a car and picked Grady up, they drove around the block and again saw Bell. When they jumped out of the car and called for Bell to stop, Grady explained that Bell said "you won't catch me, I'm a hold-up man." Grady stated that Bell fit the description of a man wanted for armed robbery as listed on a police daily bulletin, and that Grady shot him as a fleeing felon.*fn7

Vorpagel asked Grady how far he was from Bell when he shot him. Vorpagel stated Grady showed him the spot from which he had fired and Vorpagel marked it with a piece of ice. Vorpagel and Hughes then measured the distance from the piece of ice to the spot where the body was outlined and noted the distance to be 23"-9".

At the police "safety building" Grady and Krause talked to various police officials and each was told to write a report which, when later typed, was entitled "Report of Homicide". Krause was kept separate from Grady as they wrote the reports. Both incorporated in their respective reports the falsification that Daniel Bell emerged from his vehicle with a knife in his right hand, shouting, "You son of a bitches won't get me, I'm a holdup man."*fn8 Krause's report specified that when "Grady fired the fatal shot he was about 10" to 15" away from the suspect" (Exhs. 12, 13).Grady's report did not specify the approximate distance; Vorpagel and Hughes, as noted, had measured the distance based on Grady's account as 23"-9".

Detectives Vorpagel and Hughes opened a "homicide offense file," completing several reports which reflected Grady's explanation of the incident. Other police officers supplemented the file with reports. Supervisory officers then released the Grady-Krause story to the newspaper reporters.*fn9

Sylvia White Bell, Daniel's sister, heard the news of her brother's death on the 10:00 p.m. television news,*fn10 which announced Daniel Bell had wielded a knife, showing "the knife". Daniel Bell's knife was sitting in the bathroom in her house. (Daniel resided with his sister at the time.) Sylvia called her brother Patrick, who along with other brothers went to the police safety building. They were brought to an office in the presence of several officers, where a uniformed officer explained the incident and presented the knife. Sylvia responded, "no, sir he did not have a knife. Here's my brother's knife right here." Sylvia testified the officer demanded she give him the knife, but she refused, exclaiming, "I am not going to give you anything because my brother didn't have a knife in his hand. And he's left-handed anyway" (Tr. 3245-3252).*fn11 Sylvia testified further that Patrick Bell queried that if Daniel held a knife when he jumped from his car, why didn't Grady shoot him at that point? The officer allegedly responded, "You can't tell you niggers nothing. Get out of here or I will throw you in jail." Patrick and the others then left the building.

Plaintiffs seek to attribute the above comments to defendant Detective Sergeant Shaffer. Though Shaffer testified he was not positive if he spoke with the Bells that evening, Detective Hughes testified that Shaffer probably did speak with them, but all he overheard was one of the Bell male voices saying, "Oh, you think it's open season, like on rabbits. We are going to start shooting a few of you cops." And Sergeant Shaffer was trying to answer their questions" (Tr. 3544-3545). Hughes also stated that as a detective sergeant, Shaffer wore civilian clothes and not a uniform.

The morning after the shooting the initial story authored by Grady and Krause began to unravel in the internal investigation. Detective Vorpagel returned to the detective bureau and the office of Inspector of Detectives Glaser, deceased at the time of this action. Inside his office Glaser was meeting with Captain of Detectives Woelfel, also deceased, Shaffer, and Grady. Krause had also arrived, and both Vorpagel and Krause were called in as Shaffer told Grady to sit outside the office. Glaser, reading the various reports said something to the effect that the reports ere not consistent, and that the reports would be reviewed upstairs in District Attorney McCauley's office. (William McCauley is also now deceased).

According to his testimony, Vorpagel, on his way to McCauley's office, ran into Chief of Police Johnson outside Johnson's office and told Johnson at this time that Grady had told him the prior night he shot Bell at a distance measured at 23"-9". Vorpagel showed Johnson the diagram drawn by Detective Hughes, showing that Grady shot Bell at the distance, then left Johnson and proceeded to McCauley's office.

Grady then joined Johnson in his office before the meeting in McCauley's office. According to Johnson's testimony, he declared, "I can't understand how you could shoot a man from some distance away as was in Vorpagel's report" (Tr. 2823). Grady answered, "No, we were fighting. It was an accident. He was as close as you to me [a foot or two apart]. What's going to happen to me?" Johnson answered, "I don't know. There probably will be an inquest into this thing" (Tr. 2823-2824).*fn12

Grady then joined McCauley, Inspector of Detectives Glaser, Captain of Detectives Woelfel, Vorpagel, Shaffer, and Krause in McCauley's office. As Vorpagel testified, Grady told McCauley that Bell had slashed at him with a knife and he shot Bell at a distance of approximately six feet. Vorpagel told McCauley that Grady told him the night before that he shot Bell at a distance that was measured to be 23"-9", and that Grady never mentioned being slashed at with a knife. And Krause's report the night of the shooting estimated the distance at ten to fifteen feet. McCauley read over the reports and talked to Woelfel. Woelfel gave Vorpagel the reports and said, "Your reports are not consistent." Woelfel told Vorpagel that he should change the reports to include the fact that Grady had been slashed at with a knife. Woelfel also told Vorpagel that his diagram was incorrect, but Vorpagel refused to change it. Woelfel told Vorpagel that he would have to talk to Glaser about it. Glaser told him he should change his report, but Vorpagel refused, since it conflicted with his understanding based on conversations with Grady and Krause the prior night. McCauley reviewed all the reports for approximately 20 minutes and then said, "These damn reports have to be consistent. I can't do anything with the case like this." McCauley then threw the reports down and handed Vorpagel's report back to him stating, "I want these reports to be consistent."*fn13 Vorpagel refused to change his report and the diagram and left the meeting to attend the autopsy of Daniel Bell.*fn14

After Vorpagel left, Woelfel and Glaser left soon thereafter, apparently taking with them the police reports. Grady, Krause, and Shaffer remained with McCauley, and newspaper reporters ere allowed into McCauley's office. The interview lasted 356 minutes and was reported the next day, February 4, in the Milwaukee Journal and the Milwaukee Sentinel. The articles reflect the "modified" version Grady proffered at the just prior meeting, i.e., that Bell slashed at him with the knife and Grady shot Bell at a distance of approximately six feet. The Sentinel article quotes Grady as stating, "We were about six feet apart when he turned and lunged at me again with the knife. I stepped back and he turned and started to run again. Then I shot." McCauley allegedly told reporters, "Under the circumstances, I see no reason at present for a coroner's inquest. In my opinion, the officer had a right to shoot."*fn15 These statements were also reported in the Journal article, in which McCauley was reported as saying, "Grady was in imminent danger of his life or serious injury due to the knife slashing of that man." The Journal article extensively reports the conversation in the interview:

Grady told McCauley that when he stopped Bell's car for a broken taillight, Bell slashed at him with what he believed was a knife. Krause, who was approaching the car, said he saw the glint of something which he took to be a knife. Just before Bell started running, Grady said, he yelled: "You -- won't get me! I'm a holdup man!"

"Did you really think this man a holdup man?" McCauley asked Krause.

"Yes, sir," he replied. "From his description, from his running, his telling us, I thought he was."

Grady said that when he caught up to Bell, Bell lunged at him again with the knife, from about six feet away. Then Bell turned and started to run again, Grady said. The officer said he yelled "stop," then shot Bell.

Krause gave this version: "The man kinda made a lunge toward Tom. I though he had a knife. I hollered at Tom. Tom pulled his gun. He stepped back a little bit and shot him."

"What made you fearful for Grady's safety?" McCauley asked. "By the lunging he [Bell] made," Krause said.

Krause said that as Bell lay in the snow "he had a knife in his hand and that knife was clenched; it looked long at the time."*fn16

The Journal article also quotes from the Grady and Krause reports written the night of the shooting, noting that "no mention of Bell's slashing at Grady with a knife was made in written reports by Grady and Krause shortly after the shooting. McCauley said he did not have the written reports [in the interview]." The article states that McCauley did mention that another potential witness had surfaced, and "if this fellow's story is different, I'll order a coroner's inquest."

Vorpagel, after attending the autopsy, was sent by Woelfel to see "Em", a victim of a holdup which had occurred two days earlier. Woelfel told Vorpagel to buy Em several drinks and bring her down to see if she could identify Daniel Bell as the man who held her up. Vorpagel visited Em, did not endeavor to buy her drinks, and brought her to the morgue, where she could not identify the body (Tr. 2338-2341). No other recent holdup victim positively identified Bell's body.

Additional reports authored by Grady and Krause surfaced. Dated February 2, it is unclear when they were written. Defendants claim these reports, each with the title "Attempted Aggravated Battery", i.e., against Officer Grady, were written the night of the shooting. Plaintiffs claim they were written after the interview with reporters February 3.*fn17 These reports reflect the modified version of the incident Grady offered at the February 3 meeting in McCauley's office which conflicts with the version offered in the homicide reports. Grady's report states, "As we approached the wanted man at 2650 North 6th Street the man made a threatening motion at me with the knife in his right hand when I ordered him to stop. At that time I shot" (Exh. 14). Krause's report provides, "When we approached the man at 2650 North 6th Street he made another desperate lunge towards Patm. Grady and still with the knife clinched in his hand. Patm. Grady then backed up and fired a shot at him after ordering him to stop" (Exh. 11). Both reports also state that when Bell leaped from the car, he slashed at Grady with the knife.

These "attempted aggravated battery" reports were not offered to the press until Wednesday, February 5. A Milwaukee Journal article printed that day*fn18 noted this fact, and that two days earlier when the press asked the detective bureau if there were other reports, the only reports offered to the press were the "homicide" reports written by Grady and Krause. According to the article, Shaffer Wednesday refused to permit a reporter to copy the attempted aggravated battery reports verbatim although the reporter had been permitted to copy the "homicide" reports. Chief of Police Johnson is reported as saying that originally the incident was "written up" as a homicide, but "I noticed there was more to it and asked for another report, and they provided it."*fn19 Johnson allegedly said the two reports were necessary because there were "two incidents involved, Bell's death and Bell's threats. It appears merely a question of chronological order * * *. It seems there might have been a cart before the horse situation here."

Two new witnesses surfaced Wednesday, February 5, Wesley McCloud and Edward Hammond. In an interview with McCauley they said they did not see Daniel Bell threaten Grady with a knife at the death scene. As reported in the February 5 Journal article, McCauley stated, "There are variances in the stories between these witnesses and both vary with the police version. I want these witnesses under oath. Under the circumstances, I'm going to ask for an inquest."*fn20

Detective Sergeant Shaffer wrote a memorandum to McCauley dated February 10, entitled "Police Witnesses: Attempted Aggravated Battery upon Patrolman Thomas Grady." The memorandum outlines the shooting as described by Grady at the February 3 McCauley meeting, i.e., that "Bell slashed at Grady a second time in front of [2650 North 6th Street] and Grady drew his gun and shot Bell * * *." The four and one-half page memorandum also lists the police officers who were present at the scene and potential witnesses located in the investigation, and very briefly outlines their statements. No mention is made of the initial indication that Bell did not slash at Grady, and that Grady shot Bell at a distance of 23"-9" or possibly, according to Krause, ten to fifteen feet.

The autopsy had been conducted by the Milwaukee County Medical Examiner, Dr. Van Hecke, in the company of his deputy, Joseph LaMonte, and Detective Vorpagel. The autopsy report, issued on February 13, impugned the credibility of the six-foot shooting distance claim in the Grady-Krause story as modified in the morning after the killing. The report stated that it was Dr. Van Hecke's opinion that, based upon the powder markings on Daniel Bell's coat, the muzzle of Grady's gun was held within several inches of Bell at the time of discharge. Johnson denied receiving this report but admitted meeting with McCauley to discuss the results.

The inquest into the death of Daniel Bell was held on February 14, 1958. Witnesses were summoned by the medical examiner by subpoena and examined by District Attorney McCauley and Deputy Medical Examiner LaMonte. Police personnel testifying at the inquest in addition to Grady and Krause were Officers Nelson, Demke, Randa, Bucholtz, Hauke and Timm, who had arrived at the scene after the shooting, as well as Shaffer, Vorpagel and Hughes, the investigating detectives. In addition to the police witnesses, all of the civilian witnesses whose existence was known were called to testify at the inquest, namely, Eugene Bradshaw, Wesley McCloud, Jr., Fanny Mae Boss, Anna Mae Hardman, Charles W. Avery, Edward Hammond, and William Hochstaetter. Also testifying were John L. Warnette, who on February 6 drew a scale drawing of the shooting scene, Charles M. Wilson, Superintendent of the Wisconsin Crime Lab, and Dr. Van Hecke. Attorneys representing the Bell family were also present, along with Daniel's brothers Joseph and Walter Bell and sister Sylvia White Bell.

Grady once again amended his explanation of the shooting, again reducing the estimated distance at which he shot Bell, this time to conform with the autopsy report. Grady testified that when he shot Bell, "we were very close, [Bell] maybe inches away from the end of the gun * * *.Without directly disclosing all the inconsistencies in Grady's prior statements, McCauley at least raised the issue:

Q Do you know a detective by the name of Vorpagel?

A I do.

Q Did you point out to him where you were standing when you shot Mr. Bell?

A I don't believe I did.

Q What? Well, you heard his testimony.

A There must have been some confusion because where I showed him that was where I got out of the car, the commandeered car.

Q Well, you have heard Mr. Vorpagel say that he put a block of ice, I believe it was, at the point where you said you shot -- did he do that?

A He may have put a block of ice there but that was where we got out of the car, that wasn't where I shot from.

Q Are you sure that that shooting took place as you were descending from the snowbank?

A I am.

Q I took a statement from you, didn't I?

A Yes.

Q I asked you how far Bell was from you when he knifed at you the last time, do you remember that?

A I do.

Q And what did you say?

A Isaid six feet, but since that time I have had a chance to go back and check the scene where it was and I realize that he was actually much closer than six feet.

Q You did say six feet at that time --

A I did say but --

Q --now you say that you were practically on top of him or he was close enough to slice at you with his arm outstretched?

A That's correct.

Q But he did not hit you?

A No, sir.

Q Did he come close?

A Very close.

Q By the way, this Exhibit No. 2 -- do you recognize that knife?

A I do.

Q And what knife is that?

A That is the knife that Mr. Bell had in his hand when he attempted to cut me.

Q Are you sure he tried to do it twice?

A I am.

Q How long are your arms, do you know -- what size shirt do you wear?

A About a thirty-three.

Mr. LaMonte:

Q That would be your shirt length, not necessarily your arm.

A No, my hand would be another seven, eight inches.

Mr. McCauley:

Q That shirt you are wearing now, is that a thirty-three?

A That is right.

Q Were you close enough to him to tackle him or tussle with him?

A Probable [sic] so but I was scared to with a man with a knife in his hand. It was instantaneous, it all happened very fast, almost spontaneously.

Mr. McCauley: That's all, Officer.

Mr. LaMonte:

Q Any questions by the Jury?

A (None).

(Inquest testimony at 165-167).

Grady also testified that Bell shouted, "You sons of a bitch aren't taking me, I'm a holdup man," and that Bell's color, build, and clothing fitted the description of a felon wanted by the Milwaukee Police Department as noted in the police bulletin.

Krause testified similarly, stating that Grady was four or five feet from Bell at the time of the fatal shot, but the revolver was much closer by virtue of grady's outstretched arm. McCauley did not raise Krause's prior "homicide" report, which stated Grady shot Bell at a distance of ten to fifteen feet.

Vorpagel testified that he measured the distance from where Daniel Bell's head was marked on the sidewalk to where Grady told him he was standing when he stated he had shot Bell, and found the distance to be 23"-9".

Shaffer testified that on the night of the shooting Grady told him that Bell announced himself as a "holdup man" and that Grady believed him to be a fleeing felon. Shaffer also testified that Grady told him at the police safety building that night that Bell slashed at Grady just before Grady shot Bell, at a distance of six feet, and that Grady's arm was extended.

Other police witnesses testified that upon arriving at the scene they saw the knife in Bell's hand. Of the civilian witnesses who testified, the testimony of Wesley McCloud, Edward Hammond, and William Hochstaetter was potentially the most crucial. McCloud was not asked if he saw a knife in Bell's hand. Hammond testified that Bell did not swing or lunge at Grady. Hochstaetter testified that he heard the fatal shot and saw the body of Daniel Bell immediately thereafter with Bell's hands outstretched but saw nothing in Bell's hands. McCauley and LaMonte subjected McCloud, Hammond, and Hochstaetter to the most stringent questioning of the inquest, delving into collateral matters in an attempt to discredit their testimony.

Finally, Dr. Van Hecke and Charles M. Wilson testified to the substance of the autopsy report, i.e., that the muzzle of Grady's revolver was approximately one inch from Bell's topcoat when the revolver discharged.

The inquest jury returned a verdict that the killing was justifiable. Grady resigned from the Milwaukee Police Department on November 10 of the same year.

Judicial Proceedings

Daniel Bell's father Dolphus left his home in Louisiana to join many of Daniel's siblings residing in Milwaukee and to expose the truth and seek redress for his son's death. On August 10, 1959, Dolphus Bell filed a claim with the City of Milwaukee, requesting $18,125 in damages for the wrongful death of his son. After that claim was denied by the City, Dolphus Bell commenced an action in Milwaukee County Circuit Court on February 1, 1960, for wrongful death and idemnification against Grady and the City of Milwaukee. Dolphus Bell sought $18,125 in damages, the maximum statutory wrongful death recovery at the time.*fn21 The defendants resisted the action on the basis of Grady's false self-defense representations made during the investigation. Defendants' answer states, inter alia, that Bell exclaimed he was a "holdup man," Bell lunged at Grady with a knife, and that the shooting was in self-defense (exh. 508).

After a mistrial, Dolphus Bell's state court action was reassigned for trial to Judge Robert L. Landry, who urged the parties to settle. Defendants offered $1,800, and, when asked in court by Judge Landry whether he would accept the sum, plaintiff stated he was so willing (but he never signed a settlement agreement). The case was dismissed on the merits. Subsequently Dolphus Bell refused to accept the settlement check and the money was paid into court, where it remained until Novemer 5, 1965, when it was returned to the City.

Daniel Bell's brother Henry testified that Dolphus returned to Louisiana a broken man, believing the truth would one day surface to vindicate his son. Dolphus Bell died in 1962.

In 1978 Krause went to successor District Attorney E. Michael McCann and revealed that he and Grady had lied about what occurred during the Bell shooting in 1958. He stated that Bell had made no lunge with a knife toward Grady at any time and that the knife found in Bell's hand was planted by Grady. A wiretap was arranged and Krause engaged Grady in conversation over the telephone on December 1, 2, and 6, 1978. In the conversations Grady admitted planting the knife and maintained the shooting was accidental.*fn22

On August 29, 1979 Thomas Grady pleaded guilty to homicide by reckless conduct and perjury in connection with the Daniel Bell inquest. He was sentenced to seven years' imprisonment, and was paroled after three years.

The present action was commenced in October 1979 by Daniel's sister and eleven brothers on behalf of themselves, the estate of Daniel Bell, and the estate of Dolphus Bell, brother Patrick Bell, Sr. acting as special administrator of the two estates. Named as defendants in addition to Grady were the City of Milwaukee, former Police Chief Johnson, and former Detective Sergeant Shaffer. Plaintiffs also attempted to name and hold liable Milwaukee County and the "Office of Milwaukee County District Attorney" for the actions of the deceased former District Attorney McCauley. These latter claims were ultimately unsuccessful and are discussed infra.

Plaintiffs based their claims upon the federal civil rights statutes 42 U.S.C. §§ 1981, 1983, 1985, and 1986. The claims can be broken down as follows. First, (a) Daniel Bell's Fourth and Fourteenth Amendment rights were violated in the excessive use of force by Grady in the chase, and (b) his Fourteenth Amendment rights were violated in the unlawful killing. Plaintiffs assert that Section 1983 entitles his estate to recover damages arising from the excessive use of force and the deprivation of life without due process, perpetrated under color of state law. Second, the Fourteenth Amendment rights of Daniel's father Dolphus Bell were infringed by the unlawful killing; specifically, the father allegedly possessed a constitutionally protected liberty interest in the continued association of his child. Where this relationship is interferred with absent due process, under color of state law, plaintiffs contend that Section 1983 allows for damages to be recovered for the injury. Third, Daniel's siblings proffer a Fourteenth Amendment theory similar to that of the father's estate, i.e., that the Fourteenth Amendment and Section 1983 protect the associational relationship of siblings. The type of damages allegedly incurred by the father and siblings is loss of society and companionship--plaintiffs claim no pecuniary injury (other than $670 for the funeral expenses of Daniel Bell). Fourth, the estate of Dolphus Bell and the siblings allege that (a) defendants Grady, Johnson, Shaffer, and others conspired to conceal the facts of the shooting and killing, (b) the conspiracy interfered with their ability to pursue their claims against Grady and the City arising from the killing, (c) such conspiratorial interference deprived them of their due process and equal protection rights, and (d) these deprivations and the concomitant pain, humiliation, and frustration are compensable under Sections 1981, 1983, 19985, and 1986.

The defendants filed a motion to dismiss on the primary grounds that: (1) under Wisconsin law, which they contend applies; the claims of Daniel Bell's estate did not survive his death, (2) all claims are barred by the three-year or six-year Wisconsin statute of limitations, and (3) the siblings do not state cognizable claims under the federal civil rights statutes. The district court, Chief Judge Reynolds of the Eastern District of Wisconsin, rejected defendants' arguments and therefore denied their motion to dismiss the complaint. Bell v. City of Milwaukee, 498 F. Supp. 1339 (E.D. Wis. 1980) ("Bell I").

Subsequently defendants filed an answer and a motion for summary judgment, again raising the statute of limitations defense, along with the argument that the 1960 state court action filed by Dolphus Bell precluded the present action. The district court denied defendants' motion, finding no res judicata effect and once more rejecting the statute of limitations argument. Bell v. City of Milwaukee, 514 F. Supp. 1363 (E.D. Wis. 1981) ("Bell II"). These arguments are addressed more extensively infra.

The trial extended over ten weeks from October through December 1981. As outlined above, substantial testimony was heard from Grady, Krause, Johnson, Shaffer, Vorpagel, Hughes, and Henry Kasza, all members of the Milwaukee Police Department at the time of the shooting. Daniel Bell's brother and sister Henry Bell and Sylvia White Bell testified as to the pain and humiliation suffered by the Bell family as a result of the killing and the alleged conspiracy to distort and conceal the facts of the killing, as well as the loss of society and companionship of Daniel Bell suffered by the siblings and their father before his death. Numerous exhibits were received in evidence, including the police reports, newspaper articles, inquest testimony, and documents arising from Krause's confession in 1978 and Grady's conviction in 1979.

At trial defendants raised several legal theories which would either nullify plaintiffs' action or limit the amount of recover the jury could award in the special verdict. These theories included:

(1) Wisconsin statute of limitations defense.

(2) Res judicata defense.

(3) Wis. Stat. § 895.01, the Wisconsin survival statute, cannot be construed to allow Dolphus Bell's claims to survive his death.

(4) If Dolphus Bell's claims do survive his death, Wis. Stat. § 895.04, the Wisconsin wrongful death statute, applies, limiting his estate's maximum recovery to $25,000 for loss of society and companionship.

(5) Wis. Stat. § 895.04, which limits siblings' recovery to pecuniary injury and disallows recover to the victim's estate, applies in this action, precluding recover to the estate of Daniel Bell for loss of life and to the siblings for the loss of society and companionship of Daniel Bell.

(6) Wis. Stat. § 895.04 which does not provide for punitive damages precludes punitive damage recovery for the death of Daniel Bell.

The district court rejected defendants' arguments at trial, and again in ruling upon defendants' post-verdict motions. See Bell v. City of Milwaukee, 536 F. Supp. 462 (E.D. Wis. 1982) ("Bell III"). The court submitted special verdict questions to the jury allowing the jury to award damages under any and all of plaintiffs' four primary theories. They jury found the following:

(1) Although Grady did not violate Daniel Bell's rights to the chase, Grady violated Daniel Bell's constitutional rights by shooting and killing him. The jury awarded the estate $100,000 in compensatory damages and $25,000 in punitive damages.

(2) The estate of Dolphus Bell was awarded $75,000 for the loss of society and companionship of Daniel Bell (plus $670 in funeral expenses).

(3) The eleven brothers and one sister were awarded a total of $100,000 for the loss of society and ...

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