Appeal from the United States District Court for the Eastern District of Wisconsin. No. 84-C-1515 -- Myron L. Gordon, Judge.
Bauer, Chief Judge, and Cummings and Manion, Circuit Judges.
During the early morning hours of November 14, 1981, in the City of Racine, Wisconsin, the defendant, Racine City Police Officer Daniel Thomas, observed a traffic violation committed by the plaintiff, Glenn Schultz. Officer Thomas pursued Schultz in his squad car, apprehending the plaintiff's vehicle following a short chase. A caustic exchange ensued between Thomas and Schultz later involving defendant Pavilonis, also a member of the Racine City Police Department. Schultz was subsequently arrested and charged with disorderly conduct in violation of Municipal Ordinance 25.01.010. Schultz alleged that during the course of his arrest the officers struck his head against the hood of their squad car and threatened to "bash [his] teeth in."
On March 24, 1982, the disorderly conduct charge was tried in Racine County Circuit Court before Judge Dennis J. Flynn, who sat as the trier of fact. The trial began at 9:55 a.m. and ended the same day at 1:50 p.m. Following the testimony of Glenn Schultz, Officer Thomas, Officer Pavilonis, Lisa and Brian Schultz, Scott Nelson, and Paul Carbajal, Judge Flynn rendered an oral decision from the bench acquitting Schultz of the disorderly conduct charge.*fn1
Judge Flynn made seven specific findings that the testimony of Officers Thomas and Pavilonis was unbelievable or that their statements were lies regarding threats, harassment, and the deprecation of Schultz during the course of his arrest. Judge Flynn's decision also contained his opinion that Thomas and Pavilonis had abused their authority and suggested that the matter be referred to the City Police and Fire Commission.
Following his acquittal, Schultz filed a two-count civil rights action pursuant to 42 U.S.C. § 1983 against the two defendants, the City of Racine, and other unknown officers for false arrest and excessive use of force.*fn2 Prior to trial in the United States District Court before Judge Myron Gordon, the defendants filed a motion in limine seeking to exclude any reference to Judge Flynn's March 24, 1982 decision. Judge Gordon denied the defendants' motion and allowed Judge Flynn to testify to the findings of fact and conclusions of law contained in his opinion. A transcript of Judge Flynn's decision was also admitted into evidence and later sent to the jury room. The defendants renewed their motion to exclude Judge Flynn's testimony just prior to trial and objected to the admission of his decision as well as its submission to the jury for deliberations.
A six-person jury returned a verdict for the plaintiff on both counts, awarding compensatory damages against each defendant for $250.00 and punitive damages against each in the amount of $80,000. The defendants moved for a new trial and reduction of the punitive damage award. The court denied the defendants' motion but reduced the punitive damage award by one-half.
Thomas and Pavilonis appeal the district court's denial of their motion for a new trial and charge that the court's admission of Judge Flynn's testimony constitutes reversible error. We believe that admission of Judge Flynn's testimony regarding the witnesses' credibility constitutes an abuse of discretion and therefore remand this case for a new trial in accordance with this opinion.
While we are mindful of the deference our system of appellate review requires when considering a trial judge's determinations on the admissibility of evidence, we are firmly convinced that Judge Gordon abused his discretion in admitting Judge Flynn's opinion as to the credibility of the witnesses. See United States v. Gentile, 816 F.2d 1157, 1161 (7th Cir. 1987) ("Ordinarily we will reverse a district judge's decision to exclude evidence only if the judge has abused his discretion in so doing."); Webb v. City of Chester, 813 F.2d 824, 827 (7th Cir. 1987); United States v. Buishas, 791 F.2d 1310, 1313 (7th Cir. 1986). During the course of trial, Judge Gordon permitted Judge Flynn to testify as to his findings in the disorderly conduct case and also admitted into evidence the text of Judge Flynn's transcribed oral decision. Contained in that opinion were the following statements:
I find the officers' testimony not to be credible. Said another way, I find it to be a lie.
I find that under the facts here, that Officer Thomas did in fact threaten and swear at, using the word asshole, the defendant, and I find under the circumstances that was not called for.
I find it was the officer who was telling an untruth and the four citizens who were telling the truth.
I find that Officer Pavilonis, under the testimony of this case, is not credible in his testimony today. I find that he did make threats against the defendant, and ...