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Palmquist v. Selvik

April 21, 1997

HELEN E. PALMQUIST, ADMINISTRATRIX OF THE ESTATE OF PAUL PALMQUIST, DECEASED, AS ADMINISTRATRIX, AND ON HER OWN BEHALF, PLAINTIFF-APPELLEE,

v.

MARK SELVIK AND VILLAGE OF BENSENVILLE, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 91 C 973 W. Thomas Rosemond, Jr., Judge.

Before BAUER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

ARGUED NOVEMBER 4, 1996

DECIDED APRIL 21, 1997

In the early hours of April 23, 1990, Paul Palmquist, a resident of Bensenville, Illinois, began acting strangely. He screamed obscenities and incoherent statements, threw things in his apartment, stomped around the yard, and broke his neighbor's windows. Around 5:30 a.m. he threatened to kill the paper deliverer. She reported this to the Bensenville police, who rushed to the yard outside Palmquist's apartment to investigate. They found him there shouting wildly, brandishing a muffler pipe and a fan blade. Palmquist defied the officers' requests to calm down and drop the weapons. He told the officers they would have to kill him. When they attempted to arrest him for breaking the windows, he refused to be taken. As the officers approached Palmquist, he swung the pipe at one of them and landed a blow. After Palmquist swung at the officers again, another officer fired numerous shots. Palmquist was killed.

Palmquist's estate sued the Village of Bensenville and its police for excessive force under 42 U.S.C. sec. 1983, contending that they violated Palmquist's civil rights when he was shot and killed. After a month-long trial a jury found the defendants liable and awarded his estate $165,000. The defendants appeal this verdict, arguing that the district court excluded evidence that Palmquist wanted to commit "suicide by police." Among other contentions, the defendants also submit the Village should not be held liable for failure to train its officers, as the jury found. We affirm in all respects, except for the "failure to train" claim, which we direct for the Village as a matter of law.

I.

Because the defendants challenge the district court's denial of judgment as a matter of law and seek a new trial, we view the trial evidence of the events of the morning of April 23, 1990 in the light most favorable to the party winning the verdict, the plaintiff, and make all reasonable inferences which may be drawn from that evidence in favor of Palmquist's estate. Futrell v. J.I. Case Co., 38 F.3d 342, 346 (7th Cir. 1994).

Paul Palmquist was a 41-year-old former auto mechanic who lived in a basement apartment at 310 S. Miner Street in Bensenville, Illinois. He was 6'1" tall and weighed 225 pounds. During the early hours of April 23, 1990, neighbors heard a series of disturbances: Palmquist was screaming obscenities and incoherent statements, throwing things in his apartment, stomping around the yard, and breaking glass windows. Around 5:30 a.m. Palmquist screamed at the woman who delivered newspapers for the neighborhood, threatening to "kill her" and "shoot her." She left and found a Bensenville police officer she had seen previously at a nearby restaurant. That officer, Gerald Ragusin, reported to the scene; soon Officer James Kania also arrived.

Upon arriving, the officers found Palmquist on the front lawn of his residence yelling in an incoherent manner about the Viet Cong, how he wanted the officers to "call his colonel," and how a neighbor had killed his dog. He used profanity and repeatedly stated that he wanted to be left alone. Palmquist brandished a 33«-inch piece of rusty muffler pipe, with the clamps and bolts still connected to the end of the pipe, and a fan blade. Officer Ragusin began conversing with Palmquist, asking him to calm down and to drop the pipe and fan blade. Officer Kania made the same requests, but was ignored. The officers pulled their guns from their holsters, and ordered Palmquist to drop the car parts. He refused, opened up both arms exposing his chest, and asked the officers to kill him.

A neighbor, Mr. Sanchez, then approached the officers and advised them that Palmquist had just woken him by shattering the driver's door window of his car along with two windows of his home. Palmquist heard Sanchez's statements, and said he smashed the windows because Sanchez had just killed Palmquist's dog. Sanchez told the officers that Palmquist's dog had been gone for over a year. Officer Ragusin asked Sanchez if he wanted to press charges against Palmquist for criminal damage to property. Overhearing this statement, Palmquist offered to pay for the damage. Sanchez said he still wanted to press charges.

The officers then approached Palmquist and told him he was under arrest and he should drop the pipe. Once told he was under arrest, Palmquist began backing up. The officers advanced with their guns still drawn, and Palmquist retreated up the driveway while swinging at the officers with his pipe. The officers repeatedly told Palmquist to put the pipe down so they could "talk this thing out." Palmquist repeatedly told the officers they "would have to kill him", and pointed to his chest and said "you'll have to shoot me right here . . . there is no way you are going to put the cuffs on me."

As Palmquist slowly retreated, Officer Kania got close enough to use his flashlight to knock the fan blade out of Palmquist's hand. In doing so, Officer Kania hit Palmquist in the forearm. Palmquist then swung the pipe again and struck Officer Kania in the shoulder. The microphone to his radio was knocked off and his shirt torn. Officer Kania suffered a bruise and a cut which did not require hospitalization. Despite being hit, Officer Kania holstered his gun to calm Palmquist down. Officer Ragusin kept his weapon out. Palmquist continued to retreat. This occurred five to seven minutes after the officers arrived at the scene.

After Palmquist hit Officer Kania with the pipe, Officer Ragusin radioed for assistance from the night commander, Sergeant Mark Selvik. Sergeant Selvik had monitored Officer Ragusin's original report, and detected the agitation and urgency in Officer Ragusin's voice in this second radio transmission. Sergeant Selvik ran to his patrol car, activated the emergency lights, and quickly drove the less than one mile from the Bensenville police station to the scene. At the time, Sergeant Selvik had been a police officer for 13 years, and a sergeant for 5 years. He had undergone extensive formal and informal training, at which he had done exceedingly well. He finished first in his class at the basic law enforcement course conducted by the University of Illinois' Police Training Institute, and received the highest written exam and range scores from the Illinois Mandatory Firearms Training program. He had also completed special courses in negotiation techniques for hostage-taking and barricaded-subject situations, and was certified to use and instruct in the use of the PR-24 police baton, a 24-inch long side-handle night-stick which can be used to shield against blows and disarm attackers. Sergeant Selvik had successfully completed the course of study at the Federal Bureau of Investigation academy in Quantico, Virginia as well.

As Sergeant Selvik exited his squad car, Officer Ragusin asked him via radio to bring a PR-24 baton. Selvik brought the baton with him, hidden behind his back, ready to be used. When Sergeant Selvik arrived, Palmquist became more agitated. Sergeant Selvik, at 5' 9" much shorter than Palmquist, found out that Mr. Sanchez wished to press charges against Palmquist, and repeatedly ordered Palmquist to put down the pipe and lie down on the ground. Palmquist ignored the warnings and continued to shout about the Viet Nam war, his colonel there, and "the FBI of the CIA." Palmquist referred to Sergeant Selvik as a "Viet Cong colonel," and repeatedly shouted that he "was not going to be taken alive" and the officers should kill him.

Sergeant Selvik then discarded the baton into a nearby bush and withdrew his service weapon, a 9 millimeter sidearm, from its holster. Palmquist stood a few feet from the side of a building. The three police officers surrounded Palmquist, preventing him from moving toward them or to either side. The officers stood 4 to 6 feet from Palmquist. Officer Ragusin then grabbed a nearby bicycle and lunged at Palmquist holding the bicycle in front of him trying to knock the pipe from Palmquist's hands. But Ragusin slipped and fell. Palmquist turned towards Ragusin and swung the pipe at him. Ragusin managed to get out of the way.

At that point, Sergeant Selvik fired 2 or 3 shots into Palmquist's thigh. Palmquist's legs buckled, he fell toward the ground, and the pipe came down to the ground as well. Accounts vary from five seconds to a minute as to how long Palmquist was on the ground. Palmquist got up using the pipe as a prop, saying to Sergeant Selvik "You only winged me -- you'll have to kill me." Palmquist then lifted the pipe over his head and swung it in the direction of Sergeant Selvik. Selvik first directed his fire towards Palmquist's pipe-wielding arm, and continued to fire shots into Palmquist, finally directing his fire at Palmquist's "center mass." Palmquist was struck repeatedly by bullets fired from Selvik's weapon. Palmquist again fell to the driveway on his right side in the fetal position. When he attempted to raise up on his right forearm, Officer Kania kicked the pipe from his hand, and Officer Ragusin placed his hand on Palmquist's shoulder and told him to stay down. Sergeant Selvik immediately radioed the dispatcher for an ambulance. As Sergeant Selvik moved away, he overheard Palmquist say "I'm not finished yet." Other witnesses said Palmquist said "You finally gave me what I wanted" or "I hope this worked, I hope you shot me enough." Sergeant Selvik had fired 17 shots at Palmquist; 11 drew blood. Palmquist died as a result of these wounds. The total time that elapsed from Sergeant Selvik's arrival to the final shots was approximately five minutes. The parties do not dispute that Sergeant Selvik acted under color of state law during the incident.

Palmquist's mother sued Sergeant Selvik and the Village of Bensenville claiming that Selvik used excessive force in seizing Palmquist, as well as that the Village of Bensenville inadequately trained its police officers as to how to handle persons behaving abnormally. The parties stipulated that the magistrate judge could try this case to judgment. A month-long jury trial limited to liability took place in October 1993. The jury heard conflicting accounts of the incident from 12 eyewitnesses and 3 experts, and then found for the plaintiff. The damages portion of the trial then took place; it lasted only a day and a half. The jury awarded Mrs. Palmquist and her son's estate a total of $165,000 in damages: $500 for pain and suffering; $24,000 in lost accumulations; $5,500 in medical and funeral expenses; $100,000 for the loss of enjoyment of life; and $35,000 to Mrs. Palmquist for loss of companionship and society. The suit was filed pursuant to 42 U.S.C. sec. 1983. Thus, the district court had jurisdiction under 28 U.S.C. secs. 1331 & 1343(3) and (4), and this court has jurisdiction pursuant to 28 U.S.C. sec. 1291.

In our consideration of this appeal, we rely on the district court record as well as the parties' submissions of briefs and appendices. Circuit Rule 28(d)(1) requires that in those briefs "[t]he statement of the facts relevant to the issues presented for review . . . shall be a fair summary without argument or comment." This description does not fit the statements of facts in defendants' briefs. They do not mention numerous facts which supported the jury's verdicts on plaintiff's claims, especially those surrounding the confrontation itself. Palmquist's estate has moved to strike the defendants' statements of facts as improperly argumentative, and cited numerous omissions of testimony favorable to plaintiff, as well as at least four instances where defendants did not "give the entire story" of the testimony. Parties must be called to task for these omissions and failures to denominate contested issues of fact on which they lost. See Avitia v. Metropolitan Club of Chicago, 49 F.3d 1219, 1224 (7th Cir. 1995) (warning appellants not to treat contested testimony of losing party's witnesses as facts or risk having brief stricken). Accordingly, plaintiff's motion will be granted.

II.

Sergeant Selvik seeks a reversal of the jury's finding of excessive force and a new trial on that claim. He argues that in both the liability and damages phases of the trial the trial court improperly excluded evidence of a "death wish" by Palmquist which amounted to "suicide by police." He also claims the court improperly excluded evidence of Palmquist's alcohol and drug use and did not properly instruct the jury concerning the excessive force claim. The Village seeks a reversal on the ground that insufficient evidence supported the jury's finding that the Village failed to properly train its police officers, and asks that we enter judgment as a matter of law on that claim.

A. Exclusion of Palmquist's Character Evidence

The central inquiry of this case is whether Sergeant Selvik used excessive force in stopping Palmquist the morning of April 23, 1990. The Supreme Court has held that "[w]here, as here, an excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment," Graham v. Connor, 490 U.S. 386, 394 (1989), and thus is properly analyzed under the Fourth Amendment's "objective rea-sonableness" standard. Id. at 388. "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene." Id. at 396. This inquiry "is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397 (citations omitted). To aid the jury in undertaking this objective inquiry, the defendants argue they should have been able to introduce character evidence of Palmquist's "motive" and "intent," especially as it pertains to Sergeant Selvik's self-defense claim. This evidence of Paul Palmquist's past, especially the events of the last days and hours of his life, provides background to this tragedy and illustrates why the parties fought so hard over its admission.

1. Excluded Palmquist character evidence.

Shortly before 1 a.m. on the morning of Palmquist's death, a police officer from the nearby Chicago suburb of Itasca spotted him driving his motorcycle, weaving from side to side. The officer stopped Palmquist, smelled a strong odor of alcohol, and observed his glassy and bloodshot eyes. Palmquist denied that he had been drinking, but after he failed a field sobriety test the officer arrested him for driving under the influence. A protective pat-down search revealed a plastic bag with 10.5 grams of marijuana. Palmquist was charged with driving under the influence, drug possession, and various traffic offenses. He was released on bond at approximately 3:30 a.m.

Palmquist returned to his Bensenville apartment, and, as one of his neighbors described, began to "howl at the moon." He screamed at himself and his next-door neighbor, imitated the "Three Stooges," talked to himself, and ranted about microwaves. Two neighbors testified he did this because "he wanted someone to call the police."

Jeff Parsons, a friend of Palmquist's, said that the day before he died, Palmquist told him he would provoke the police to kill him. When Parsons heard a radio broadcast of a shooting death, he told his wife "it must have been Palmquist," even though the radio report did not give the deceased's name. Parsons contacted the Bensenville police department to alert the officer who shot Palmquist that "he had a death wish." Another friend of Palmquist's, Ned Sigler, said that in the month before his death Palmquist's drinking had worsened and that he was upset about his job as a mechanic. Sigler said that after Palmquist lost two jobs as a mechanic, he seemed depressed, and wanted "to die." Sigler described Palmquist's drinking problem as "very serious." After Palmquist's death, Sigler called the DuPage County State's Attorney's Office to advise that he knew why Palmquist died. A third friend of Palmquist's, Fred Bernacchi, who played in a garage band with Palmquist, stated that Palmquist started a "mental unraveling" about 6 months before he died, that Palmquist ...


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