Petition — Argento v. Lenard

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{ ALEXANDER L STFVAS.

IN THE oe |

Supreme Court of the United States

October Term, 1982

ROBERT ARGENTO and JOSEPH SANSONE,

Petitioners,

BENNIE LENARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_——— Eee ———————— ===

JOHN G. POUST,

Counsel of Record

STEPHEN E. SWARD

CHRISTINE M. WHEELOCK

Xerox Centre, Suite 1500

55 West Monroe Street

Chicago, Illinois 60603

(312) 372-5600

Rooks, PITTS, FULLAGAR AND POUST

Attorneys for Petitioners

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

ROBERT ARGENTO and JOSEPH SANSONE,

Petitioners,

Vv.

BENNIE LENARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Pursuant to the provisions of 28

U.S.C. 2101(c) and Supreme Court Rule Il],

petitioners pray that a writ of certiorari

issue to review the judgment and opinion of

the United States Court of Appeals for the

Seventh Circuit entered in this proceeding

on February l, 1983+,

Ithe Plaintiff in the proceeding below is Bennie

Lenard. The defendants are the Village of Melrose

Park, Robert Argento, Joseph Sansone, George Zito

and Bruce Culotta.

-ii-

QUESTIONS PRESENTED

l. Whether a civil conspiracy under

42 U.S.C. §1985(3) can be found in the

absence of a finding of an overt act in

furtherance of the alleged conspiracy.

2. Whether given a finding of a civil

conspiracy under 42 U.S.C §1985(3) alleged

conspirators can be held liable for dam-

ages not shown to be the result of acts

performed in furtherance of the con-

Spiracy.

3. Whether arresting officers are

liable for any and all injuries and/or

deprivation of constitutional rights

allegedly sustained by a prisoner while in

police custody, regardless of the lawful-

ness of the arrest or the officers' causa-

tion of said injuries or deprivations of

constitutional rights.

-ilii-

4. Whether a plaintiff is entitled to

attorney's fees and costs as to an appeal

which was (a) necessitated by errors made

by the District Court requiring reversal

of judgment entered on two counts; (b)

affirmance of one count in favor of peti-

tioner; and (c) remandment of one count for

retrial in which damages were awarded

pursuant to grossly erroneous jury in-

structions on damages as a result of which

the said remaining count damages were er-

roneously and excessively awarded.

-iv-

TABLE OF CONTENTS

QUESTIONS PRESENTED . .... .»

TABLE OF CONTENTS . ... « « «

TABLE OF AUTHORITIES .....

OPINIONS BELOW .... ss «»

JURISDICTION . 2. «6 « «© «© © © «

CONSTITUTIONAL PROVISION,

STATUTES AND RULES INVOLVED .

STATEMENT OF THE CASE .... .«

REASONS FOR GRANTING THE WRIT .

I. IN CONTRAVENTION OF THE

DECISIONS OF THIS COURT

AND OTHER COURTS OF

APPEALS, THE DECISION BELOW

PERMITS RECOVERY UNDER

42 U.S.C. §1985(3) WHERE

THE JURY FOUND NO OVERT ACT

AND NO EVIDENCE EXISTS TO

CONNECT THESE DEFENDANTS

WITH ANY OTHER WRONGFUL

CONDUCT DIRECTED TOWARD

THE PLAINTIFF . . . «2 « « «

a2

13

PAGE

II. ATTORNEY'S FEES AND

COSTS WERE IMPROPERLY

AWARDED FOR THIS APPEAL... . 36

CONCLUS ION . . . . 7 7. . . . 7 . . 4 3

APPENDIX A - Opinion Below .... la

APPENDIX B - Mandate, Order

Denying Petition for Rehearing,

Order Staying Issuance of

Mandate . om . . . . . 7 . . 7 . . . lb

APPENDIX C = District Court's

Orders Entering Judgment on

Verdicts and Awarding Fees .... le

APPENDIX D - Jury Verdicts

on Liability and Damages .... . ld

APPENDIX E = Text of

Constitutional Provisions,

Statutes and Rule Involved .... le

vi

TABLE OF AUTHORITIES

Cases

Armstrong v. Borie, 494 F.Supp.

-D. a. 80) . - 7 a .

Benson v. ALeppine 544 F.Supp.

. . . 1982) . . - .

Blackwelder v. Millman, 522

F.2d 766 (4th Cir. 1975) ..

cacy v. Piphus, 435 U.S. 249

Clapper v Flynn, 605 F.2d 519

Be 79) . . . . . .

Collins v. Hardyman, 341 U.S.

Corriz v. Naranjo, 667 F.2d

t r. 1981) . . .

Flentie v. American Com-

muity BEOESO, SED. 369 F.2d

re. 8) . . . . .

Griffin v. Breckenridge, 403

Heslip v. Lobbs, 554 F.Supp.

. »AL - 1982) . . - - .

Newman v. Piggie Park Enter-

betees, Inc., 390 U.S. 400

vii

Page

es

. 36

.

. 30

—

- we

29,34

. &

. &

aa

» 40

Page

Sandford v. R.I. Coleman

pealty Sombany Inc., 5)3

1978) . . . . . . *. . ° * *. . . 34

Stringer v. Dilger, 313 F.2d

536 (10th Cir.

1963) . . * . . . *. . . . . . . 29

United Mine Workers of

America v. Gibbs, 383 U.S.

. . . . . . . . . * 16

Constitutional Provisions

Le)

Fourteenth Amendment ....s.-.

Statutes

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Rules

Circuit Rule 18 of the Court of

Appeals for the Seventh

Circuit Ss 6.6 8 & Se & 1l-13, 4l, 44

viii

OPINIONS BELOW

The opinion of the Court of Appeals is

published at 699 F.2d 874, and is set forth

in Appendix A hereto. The mandate of the

Court of Appeals, order denying petition

for rehearing, and order staying issuance

of mandate, are set forth in Exhibit B

hereto. The pertinent judgments of the

District Court are set forth in Appendix C.

The jury verdicts are set forth in

Appendix D.

JURISDICTION

The judgment and opinion of the Court

of Appeals was entered on February 1, 1983.

A Petition for Rehearing was filed on Feb-

ruary 18, 1983 and denied on March 10,

1983. This Court's jurisdiction is in-

voked under 28 U.S.C. §§1254(1), 2101(c)

and Rule 17 of this Court.

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULE INVOLVED

This case involves the Fourteenth

Amendment; the Civil Rights Act of 1871, as

amended, and in particular 42 U.S.C.

§§1983, 1985 and 1988; and Rule 18 of the

Rules of the Court of Appeals for the

Seventh Circuit, the texts of which are set

forth in Appendix E.

STATEMENT OF THE CASE

Lenard initiated this action in a

five-count complaint pursuant to several

sections of the Civil Rights Act of 1871,

42 U.S.C. §§1983, 1985 and 1988. Juris-

diction was based on the Eighth, Thir-

teenth and Fourteenth Amendments to the

Constitution and on 28 U.S.C. §1331 and

1343. The named defendants included the

Village of Melrose Park, Robert Argento,

Joseph Sansone, Bruce Culotta, George

Zito, (Village police officers), Andrea

Dreyer, Dr. T. Mehrpuyan and Westlake Com-

~

munity Hospital. Westlake Hosital and Dr.

Mehrpuyan reached a settlement with Lenard

and they, along with Count IV of the Com-

plaint, were dismissed from the suit.

Andrea Dreyer was defaulted. Count I of

the Second Amended Complaint charged

Police Officers Argento, Sansone and

Culotta and Zito with violating 42 U.S.C.

§1983 by beating Lenard. Count II charged

these same officers with conspiracy to

deprive equal protection of the law by use

of brutal and excessive force on Lenard in

violation of 42 U.S.C. §1985(3) and the

Village of Melrose Park for failure to

properly screen, hire, train and supervise

its police employees in violation of 42

U.S.C. §§1983 and 1985. Count III charged

all defendants with a conspiracy to

impede, obstruct and defeat the due course

of justice with intent to deny equal pro-

tection in violation of 42 ¥.8.6.

=3-

§1985(2). Count V_ charged Officer

Argento, Officer Sansone and Dreyer with

malicious prosecution for the charges re-

sulting from the traffic accident and

arrest, thereby depriving Lenard of his

civil rights under 42 U.S.C. §1983.

A bifurcated trial lasting five weeks

was held on liability and damages in

February and March, 1980. While it was

Lenard's testimony that following an auto-

mobile accident he was cursed and struck

about his head and right eye with what

appeared to be a stick by Argento after he

was placed in the backseat of Argento's

squad car at the scene of the accident and

that he was also beaten while entering the

police station, the jury found that this

was not so and returned a not guilty ver-

dict in favor of all defendants upon Count

I, the “beating count."

Independent witnesses at the accident

~

scene testified as to Lenard's drunken de-

meanor, that he assaulted the other

driver, and that he was not beaten (RP

1950-1958 Davies; RP 1831-1833 Winslow)

Officers Argento, Zito and Culotta testi-

fied that Lenard was injured in two falls

in the icy parking lot and by a fall on the

Stairwell in the police station. These

officers testified that Lenard was

struggling and resisting his removal into

the station. His size, drunken condition,

his struggling, and the physical weather

conditions were the cause of the falls.

(RP 294-298; 752-762; 822-823; 2018-2021)

Despite Lenard's admission of consum-

ing nine alcoholic drinks, the finding of

both an open can of beer and a gun in his

Car (RP 285-287, 1832-1835) and the com-

plaint of Dreyer that Lenard had punched

her at the accident scene (RP 613-615,

1759, 702, 1950) the trial court permitted

~ =

Counts III (42 U.S.C. 1985(2) conspiracy)

and V (malicious prosecution) to go to the

jury along with Counts I (42 U.S.C. 1983)

and II (42 U.S.C. 1985(3). The jury found

for Lenard on the two conspiracy charges of

Counts II and III and the malicious prose-

cution charge of Count V against Argento

and Sansone only. As above stated, the

jury found in favor of all defendants on

Count I. In the damage portion of the

trial, Lenard was prohibited by the Dis-

trict Court from presenting any damage

evidence concerning his physical injuries,

consistent with the jury's finding of no

"beating" under Count I. (RP 2345) No

other evidence of damages was presented by

Lenard. Over defense objection, the jury

was given a jury verdict form by the trial

judge which provided for three categories

of damages: "compensatory", "“substan-

tial", "punitive" and instructions § and

-6-

comments by the District Court relating to

damages under that verdict form which

intertwined mention that "substantial"

damages could be awarded eleven times and

that punitive damages could be awarded

twelve times and other times in the verdict

forms. (RP 2381-2385) The jury returned a

finding of $10,000 actual and compensatory

damages, $125,000 "substantial damages,"

and $150,000 punitive damages against

Argento and $75,000 punitive damages

against Sansone,

The Court of Appeals affirmed the jury

verdict for all defendants on Count I,

i.e., as to the Section 1983 claim that

plaintiff's rights were violated by beat-

ing him. It reversed the jury verdict on

Count V, the malicious prosecution claim,

on the basis that the evidence showed ample

probable cause for Lenard's arrest and

prosecution for the charges made against

oo Fa

him . (e.g. driving while intoxicated,

open can of beer and gun in his car, RP

285-287, 1832-1835). Noting that the

parties agreed that Count III, the con-

spiracy claim under’ Section 1985(3)

related to a conspiracy to maliciously

prosecute the plaintiff, the Court of

Appeals also reversed the verdict on that

count, holding that the Section 1985(2)

conspiracy claim was dependent on the

existence of a finding of malicious pros-

ecution and given the lack of existence of

the latter, Count III must be reversed "for

failure of an act implementing the con-

spiracy." (Appendix A., p. 24a.)

On the issue of damages, the Court

agreed with defendants' contention that

the trial court's creation of a category of

damages called "substantial damages" was

in error, and that further the multiple

repetition of the term "substantial"

=-§-

intertwined throughout the instructions

required reversal of the whole damage

award. Also, the Court of Appeals held for

the additional reason that in light of its

reversal of certain counts which involved

punitive damages which had not been allo-

cated as to the separate counts, the award

should be reversed. The court stated:

We cannot but feel that the

repeated use of the phrase sub-

stantial damages by the district

court (ll times, plus inclusion

as a category in the verdict

form) in its instructions to the

jury and the instruction that

such damages could be awarded

without proof of actual injury

greatly influenced this _ large

verdict. "Repetitious instruc-

tions which place undue emphasis

On matters favorable to either

side constitute reversible

error.’ Flentie v. American

Community Stores, Corp. 389 F.2d

80, 83 (8th Cir. 1968). In light

of the erroneous use of the term

‘substantial’ in the verdict form

and the instructions in keeping

with that form, we reverse and

remand this case for retrial on

the issue of damages. (emphasis

added) (Appendix A., p. 50a.)

~~

With respect to the expense of the

appeal, the court remanded determination

of fees to the district court to be recal-

culated in light of the results of the

appeal. The Court expressly noted that the

district court should also award fees for

time spent on the issues on which plaintiff

was successful on appeal. The full costs

and a portion of the fees of the appeal

were assessed against defendants Argento

and Sansone, notwithstanding that’ they

were required to appeal to rectify the very

judgments against them which the Court of

Appeal found in error.

As to Count II, the Court notwith-

standing the not guilty finding on the

Count I beating charges, affirmed the ver-

dict in favor of defendant Officers Zito

and Culotta, but affirmed the verdicts

against defendant Officers Argento and

Sansone. Despite the affirmance of the not

-10-

guilty verdict on the beatings, the Court

further ruled that the evidence of

Lenard's physical injuries could be pre-

sented to the jury on retrial of Count II

as “injuries incurred somehow while under

police supervision and protection"

although "not as being the result of a

beating" (emphasis added). (Appendix A., p.

55a.), a strange reasoning in light of the

fact that even the plaintiff's attorney,

Bertucci stated to the trial judge: "The

only conspiracy was a conspiracy to beat

him, correct? The first conspiracy in

Count II?" (RP2346). (emphasis added)

This was in an attempt to get the court to

permit the injuries to be allowed as evi-

dence of damages in regard to the Count II

conspiracy alleged per 1985(3). The Court

of Appeals remanded Count II to the

district court for retrial on the issue of

damages only.

eli-

To summarize, the Court below took the

following action:

1. Affirmed the jury verdict as to Count I

(physical beating alleged);

2. Affirmed the jury verdict as to lia-

bility under Count II but reversed as to

damages as to all counts and remanded for

retrial as to damages under Count II (42

U.S.C. 1985(3) conspiracy to deny rights

alleged) as to defendants Argento and

Sansone;

3. Reversed the jury verdict as to Count

III (42 U.S.C. 1985(2) conspiracy to

obstruct justice) as to defendants Argento

and Sansone;

4. Reversed the jury verdict as to Count V

(malicious prosecution) as to defendants

Argento and Sansone;

5. Affirmed the jury verdicts as to Zito

and Culotta (finding in their favor);

6. Affirmed the directed verdict as to

the Village of Melrose Park (finding in its

favor);

7. Reversed the District Court's award of

$180,500 in attorney's fees and remanded

for recalculation in light of its opinion;

8. Remanded to the District Court for

determination of attorney's fees on appeal

for those issues on which Lenard prevailed

in the Court of Appeals;

9. Suspended the application of Seventh

Circuit Rule 18, which prohibits reassign-

ment of remanded case to the same trial

judge.

o) 20

Defendants Argento and Sansone timely

filed a petition for rehearing as to the

affirmance of liability under Count II,

the holding that evidence of Lenard's

physical injuries should be presented to

the jury on retrial, the assessment of the

cost of the appeal against defendants, and

the Court's further holding that Circuit

Rule 18, providing that on remand a case

shall follow normal procedures regarding

non-assignment to the same trial judge

should not apply. This petition for re-

hearing was denied without comment by the

Court on March 10, 1983.

REASONS FOR GRANTING THE WRIT

1. IN CONTRAVENTION OF THE DECISIONS OF

THIS COURT AND OTHER COURTS ' OF

APPEALS, THE DECISION BELOW PERMITS

RECOVERY UNDER 42 U.S.C. §1985(3)

WHERE THE JURY FOUND NO OVERT ACT AND

NO EVIDENCE EXISTS TO CONNECT THESE

DEFENDANTS WITH ANY OTHER WRONGFUL

CONDUCT DIRECTED TOWARD THE PLAINTIFF

-13-

Until this Court of Appeals decision,

it was an established principle of law that

for a plaintiff to recover based on a

Section 1985(3) conspiracy, he was obliged

to establish by a preponderance of the evi-

dence that (a) defendants entered into a

plan or agreement to deny plaintiff his

civil rights, (b) one or more of the defen-

dants participated in an overt act in fur-

therance of the conspiracy, and (c)that

the act resulted in the alleged damage sus-

tained. As this Court made clear in its

decision in Collins v. Hardyman, 341 U.S.

651, 659 (1951), unlike statutes dealing

with criminal conspiracy, wherein the mere

existence of the unlawful agreement may be

the basis for liability, Section 1985(3)

expressly requires “overt acts necessary

to consummate the conspiracy as an action-

able wrong." Similarly, in Griffin v.

Breckenridge, 403 U.S. 88, 103 (1971),

-lé-

this Court held that to state a cause of

action under Section 1985(3), the

plaintiff must prove that, inter alia, the

conspirators "did, or caused to be done,

‘any act in furtherance of the object of

[the] conspiracy,' whereby another was

- « « ‘injured in his person' or property

Or .. . ‘deprived of having and exercis-

ing any right or privilege of a citizen of

the United States.'" These decisions are

consistent with the general law governing

civil conspiracies, under which it is held

that there is no liability for a civil con-

spiracy unless damage results from acts

done by one or more of the conspirators in

furtherance of the conspiracy. See, e.g.,

Blackwelder v. Millman, 522 F.2d 766 (4th

Cir. 1975). In constrast to the foregoing

well-established principles of law, the

decision below stands for the proposition

that once an agreement is found, the

=~ =

alleged conspirators will be held liable

for any injuries sustained by the plain-

tiff, whether or not such injuries were the

result of any actions in furtherance of the

conspiracy, and, indeed, whether or not

one or more of the conspirators caused such

injuries. As this Court has previously

noted, "[t]he tort of '‘conspiracy' is

poorly defined, and highly susceptible to

judicial expansion..." United Mine

Workers of America v. Gibbs, 383 U.S. 731,

732 (1966). The opinion of the Court below

represents a classic case of the dangers of

judicial expansion of this tort warned

against by this Court in Gibbs. Id. at

732n.19. It also brings clearly into focus

the acute need for this Court to furnish

proper standards for liability under a

civil conspiracy theory and to set aside

the unprecedented and overly broad expan-

sion of this theory by the Court of

Appeals.

-16-

The factual summary of this case by the

Court of Appeals dramatizes the plight of

these defendants and indeed of all police

officers. The first contact between the

Plaintiff and Officer Sansone occurred

when as a result of a citizen complaint,

(RP 486) Officer Sansone went to the scene

of a minor automobile accident where

Lenard, the driver of one car, was present

along with the driver of the other car and

other witnesses. Officer Argento came to

the scene shortly after Officer Sansone.

Based on Lenard's intoxicated condition,

the presence of a gun and open can of beer

in Lenard's car and the statements of the

Other driver concerning Lenard's physical

assault on her, Officers Sansone and

=l7<

Argento arrested Lenard. (RP 488 - 494;

280 - 289)

After Lenard was taken into custody at

the scene and placed in Argento's squad

car, the evidence is in direct conflict as

to Argento, but not as _ to Sansone, who

never had any further contact with Lenard,

and presented to the jury the "seminal

issue of the entire case" (Appendix A., Pp.

15a.) In brief, the contentions of the

parties were as follows:

2The Court of Appeals held as a matter of law that

the arrest was lawful and reversed the jury's ver-

dict in favor of the plaintiff on Count V_ which

charged malicious prosecution. The Court of Appeals

also held in accordance with established conspiracy

law that in the absence of the overt act of

malicious prosecution, there could not be a con-

spiracy to maliciously prosecute Lenard as charged

by Lenard in Count II of his complaint. Had the

Court of Appeals applied this same standard to the

other conspiracy charged by Lenard in Count I of

his complaint, this Petition would not be necessary.

=-18-

A. Lenard: -- Lenard testified that

after being placed in Argento's squad car

he was struck by Argento about his head and

right eye with what appeared to be a stick,

rendering him unconscious. His next

recollection was that of sitting in the

squad car as it pulled up to the police

station and hearing Argento tell someone

"I got a big Black nigger." He testified

that he was then grabbed about the neck,

pulled from the car, fell to his knees and

was kicked and beaten. (RP 1574 - 84)

BS. Officers”

-- The testimony of the

officers was that Lenard was drunk and abu-

sive at the scene of the accident. (RP 280

Sand also independent witnesses Davies and Winslow (RP

1831-33, 1958,) who saw the arrest and testified Argento

did not strike Lenard.

-19-

- 287) Officer Argento testified that upon

arriving at the police station he attempt-

ed to remove Lenard from the car, but

Lenard was kicking, using vulgar and ob-

scene language and resisting. He radioed

into the station for assistance and

Officers Zito and Culotta responded.

Officers Argento, Zito, and Culotta all

testified that Lenard was struggling and

resisting his removal into the station.

(RP 1910 Culotta; Zito 2016 - 2023) Given

his struggling, size, drunken condition

and weather conditions, he was injured in

two falls in the icy parking lot and a fall

on the stairwell in the police station.

(RP 290 - 299 Argento)

The jury returned a verdict in favor of

the officers, thereby finding that

Lenard's injuries were not the result of a

beating as he had alleged in Count I of his

complaint but resulted from his own im-

-20-

proper resistance to being taken into the

Station house. That the jury was of this

opinion is further evidenced by the not

guilty verdicts in favor of Officers Zito

and Culotta. Their only involvement was to

assist in bringing Lenard into the station

house from the squad car. If Lenard's

Civil rights had been violated at that

time, i.e., by use of excessive force, Zito

and Culotta would have been found liable to

plaintiff under Count I as would Argento.

No other evidence other than as set forth

above was offered to explain Lenard's

physical injuries. The Court of Appeals

affirmed the jury verdict in favor of the

officers on the Count I charges’ under

Section 1983 that plaintiff was beaten. As

a matter of fact and judicial determina-

tion, plaintiff was not beaten as he

claimed.

-2]-

After being brought into the station

that afternoon but before his release at

3:00 A.M. the next morning, plaintiff's

evidence tells of various wrongs that

occurred, including dousing with cold

water while in his cell, failure to provide

medical care and verbal abuse. (RP 1584 -

1596) While this evidence was contested

vigorously by the Village and its police

personnel, it may be that the jury found

plaintiff's evidence to be credible on

these matters. However, as the transcript

of evidence will reveal, there is not a

scintilla of evidence to connect either

Officer Argento or Officer Sansone _ to

these acts. Plaintiff did not testify that

Officer Argento or Officer Sansone had any

part in these activities. Officer Argento

testified that once he had placed Lenard in

the cell, his only further involvement

with Lenard was when he returned to the

@22@

cell a few minutes later to inquire whether

Lenard wanted to see a doctor, which Lenard

refused. Officer Argento then went to

another area of the station to complete the

reports on the incident. (RP 309) 4 Officer

Sansone testified that his last contact

with Lenard was at the scene of the acci-

dent. (RP 503-4) > This evidence is unop-

posed.

The only activities with which

Officers Argento and/or Sansone were

associated, i.e., the arrest of Lenard at

the scene and bringing him into the station

house, have been found to be lawful. Yet

4We are concurrently moving to have the report of

proceedings forwarded to this Court so that the

Court can note the accuracy of these statements as

to the evidence.

"Id.

o23=

Officers Argento and Sansone find them-

selves facing a trial for damages result-

ing from a conspiracy under Section 1985

charged in Count II of plaintiff's com-

Pplaint for which there is no support in the

evidence as to these defendants, and even

more shocking, the plaintiff may present

evidence of injuries from a beating he

claims to have sustained but has been judi-

cially determined not to have happened.

The rationale offered by the Court of

Appeals for this most remarkable result,

if left standing, will generate confusion

and injustice for years to come. The Court

stated:

While Sansone's contact with

Lenard was primarily at the

accident scene, Argento did place

Lenard in his police car, drive

him to the Melrose Park police

station and escort him into the

police station. There was testi-

mony at trial that Sansone called

Lenard a ‘shine' to a tow truck

driver at the accident scene.

Lenard testified that Argento

called him a ‘big Black nigger'

-24-

and hit him in the right eye and

about the face with what appeared

to be a stick. While the evidence

does not link Argento and Sansone

to all the events of January 31,

there was sufficient evidence for

a jury to reasonably believe that

there waS an overt act- and

circumstantial evidence of an

agreement among the police, par-

ticularly Argento and Sansone, to

conspire to deprive Lenard of his

civil rights. Furthermore, there

was sufficient evidence of

racially discriminatory animus to

meet the Griffin standard of

§1985 conspiracies. (Appendix

A., pp. 20a-21a.)

The alleged racial remarks which, if

made, relate only to the element of a pos-

sible "racially discriminatory animus" but

certainly do not amount to an overt act in

furtherance of a conspiracy. See, €.g9.,

Armstrong v. Borie, 494 F.Supp. 902, 906

(E.D. Pa. 1980) .° The only other conduct

alluded to by the Court of Appeals as being

6 with respect to the remark attributed to Sansone,

it was made at the scene of the occurrence after

Lenard had departed.

=98—

in furtherance of the Count II conspiracy

is the alleged beating in the "right eye

and about the face with what appeared to be

a stick." (Appendix A., p. 2la.) This was

negated by two independent witnesses and

the jury verdict on Count I. With all due

respect, this is a non-sequitur of the

first order. The court is citing a beating

that did not occur as evidence of a co-

nspiracy to deny Lenard his civil rights.

The court concedes that the evidence does

not link Officers Argento and Sansone to

"all the events of January 31". (Appendix

Ae, Pe 21a.) In plain fact, as recited

above, there is no evidence to connect

Officers Sansone and Argento to any events

after Lenard was brought into the station

house. Nevertheless, the court’ says

"there was sufficient evidence for a jury

to reasonably believe that there was ar

overt act and circumstantial evidence of

-26-

an agreement among the police, particular-

ly Argento and Sansone to conspire to de-

prive Lenard of his civil rights."

(Appendix A., p. 21a.) The opinion and

transcript of evidence are silent as to

what this evidence is, circumstantial or

otherwise.

The opinion of the Court of Appeals

goes on to state:

While the jury may have found

insufficient evidence of a beat-

ing, that does not mean that

there was insufficient evidence

of a §1985(3) conspiracy. The

jury could have found that there

was insufficient evidence to tie

all the defendants to the alleged

beating, yet enough’ evidence

based primarily upon the injuries

Sustained by Lenard during his

police custody, to reasonably

conclude that at least Argento

and Sansone had entered into and

committed an act in the further-

ance of a conspiracy to deny

equal protection. Emphasis

added. (Appendix A., p. 22a.)

The dangerous precedent established by

this decision is further made apparent by

the holding of the Court of Appeals that:

=2F=

While the district court was

correct in holding that no evi-

dence of damage from an alleged

"beating' could be presented to

the jury because of its prior

decision, the district court

erroneously prevented the presen-

tation of any of the proffered

evidence of injuries, medical

treatment and losses caused by

those injuries sustained while in

police custody as they relate to

the conspiracy counts. [In other

words, any evidence of injuries

proved incurred from the time

shortly after the accident to

Lenard's release to his family

late that evening should be ad-

mitted as they relate to being

sustained while in police cus-

tody. These injuries cannot be

presented or argued, however, as

being the result of a beating but

presented as injuries’ incurred

somehow while under police super-

vision and protection. (Appendix

A., Pp. 55a.)

The opinion goes on to state:

However, the instructions for

the conspiracy damages were not

isolated to a particular event

but rather related to the depri-

vation of rights of "due course

of justice" and “equal protection

under the law." An award under

§1985 would not be duplicative of

the prosecution or the beating

but, in this case, go to the find-

ing of deprivation of civil

rights while in police custody.

-28-

See, Corriz v. Naranjo, 667 F.2d

at 896-898, While courts have

held that an award of damages for

a state tort claim joined with a

federal civil rights action would

be duplicative when there is an

adequate state tort remedy,

Clapper v. Flynn, 605 F.2d 519,

529 (10th Cir. 1979), there are

in this case, only strictly fed-

eral civil rights claims. As

previously indicated, §1985

provides damages for “injury or

deprivation." Thus, it is pos-

sible under §1985 to award dam-

ages for the act which effectu-

ated the conspiracies and for the

conspiracy which caused the dep-

rivation. See, Stringer Vv.

Dilger, 313 F.2d 536 (10th Cir.

1963). (Appendix A., pp. 59a-

60a.)

Thus, the rationale of the Court's de-

cision appears to be that because Lenard's

damages, e.g., alleged humiliation at the

instance of unidentified personnel at the

village police station was broader then

the alleged beating, the evidence of

physical injuries can still come in. This

interpretation of Section 1985(3) is with-

out merit for a number of reasons. First

of all, it is in direct conflict with this

=29-

Court's decision in Carey v. Piphus, 435

U.S. 249 (1977) wherein this Court recog-

nized that as a general rule tort rules of

damages should be applied in civil rights

actions, and specifically noted that this

principle is incorporated in 42 U.S.C.

§1985(3). 435 U.S at 256 n. 10. This is

apparent from the very language of Section

1985(3) which provides in relevant part

that:

If two or more persons in any

State or Territory conspire or go

in disguise on the highway or on

the premises indirectly, any per-

son or class of persons of the

equal protection of the laws, or

of equal privileges and immuni-

ties under the laws .. . in any

case of conspiracy set forth in

this section. .. if one or more

persons engaged therein do, or

cause to be done, any act in fur-

therance of the object of such

conspiracy, whereby any person

shall in injured in his person or

property, or deprived of having

and exercising any right or priv-

ilege of a citizen of the United

States, the person so injured or

deprived of such rights and priv-

ileges may have and maintain an

action for the recovery of dam-

=30-

ages occasioned by such injury or

deprivation of rights and privi-

leges against any one or more of

the persons engaged in such con-

Spiracy...

Thus, under the express language of Sec-

tion 1985(3), there can be no liability

unless the alleged conspirator commits an

act in furtherance of the conspiracy which

results in injury to the plaintiff. In the

instant case there is no evidence that the

alleged conspiracy engaged in by Officers

Sansone and Argento resulted in the physi-

cal injuries sustained by plaintiff for

which they alone are now being held respon-

sible.

The apparent holding of the court be-

low that on retrial on damages on the

Section 1985(3) conspiracy count plaintiff

may present evidence of the _ physical

injuries sustained is directly contrary to

the jury's finding that no beating occu-

rred. It must be borne in mind that

«3i<

acco.ding to the evidence presented, the

injuries sustained by Lenard after his

arrest occurred in only one of two ways,

i.,e., according to Lenard's testimony by

an intentional beating, or according to

the defendant officers' testimony, as a

result of Lenard's resisting arrest. No

other explanations appear in the record.

the jury has rejected plaintiff's evidence

by their Count I verdict. Yet the Court of

Appeals holds that because these injuries

were “incurred somehow" while in police

custody, these officers are to have dam-

ages assessed against them. This standard

makes an arresting officer an insurer of

the well-being of each prisoner he law-

fully arrests while that prisoner is in

custody. The Court of Appeals has appar-

ently eliminated any need for the plain-

tiff to prove "an act" in furtherance of a

conspiracy.

-32-

In support of its holding, the Court of

Appeals cites, inter alia, the rule of law

that prisoners are entitled to protection

from excessive use of force by police offi-

cers (Appendix A., pp. 55a-56a.) Defend-

ants do not dispute this basic proposition

of law. What is critical, however, is that

this was not the theory upon which plain-

tiff argued his case to the jury. He

Claimed that his injuries were sustained

as the result of an intentional beating,

and this argument was expressly rejected

by the jury. It is an elementary rule of

law that on appeal a plaintiff may not

change the theory upon which his case was

presented to the jury. See, e.g., Sandford

v. R.I. Coleman Realty Company, Inc., 573

F.2d 173 (4th Cir. 1978). It follows that

the Court of Appeals may not sua sponte

-33-

allow the plaintiff to do so. Yet this is

the apparent effect of the decision below.’

The Court below also asserted in sup-

port of its decision that where there is a

showing of deliberate deprivation of con-

stitutional rights while confined,a

prisoner is entitled to damages. (Appendix

A., Pp. 56a.) Again, defendants do not

contest this as a general proposition of

law. However, there must be some showing

that for defendants to be held responsible

for such deprivation they were indeed

‘The Court below cited in support of its decision

inter alia, Corriz v. Naranjo, 667 F.2d 892 (l0th

Cir. 1981). In contrast to the instant case, the

defendants in that case were expressly found guilty

of illegal arrest and false imprisonment and it was

the deprivation of plaintiff's right not to be so

falsely arrested and imprisoned as to which

defendants were held responsible. In contrast, in

the instant case defendants' arrest and initial con-

finement have expressly been found to be lawful.

-34-

causally linked to it. See, e.g., Benson

v. Allphin, 544 F.2d 464 (N.D.I11. 1982).

It is simply not the law, as the opinion

below appears to suggest that arresting

officers are responsible for anything that

may happen to a prisoner once arrested and

while in police custody. See, e.g., Heslip

v. Lobbs, 554 F.Supp. 694 (E.D. Ark.

1982).

The gross and obvious unfairness of

including evidence of such_ physical

injuries in a retrial is that despite the

fact that it has already been adjudicated

that Officers Argento and Sansone are not

liable for inflicting these injuries on

the plaintiff, it is probable that in

assessing damages on retrial a jury would

view this case as though they had. Even if

the jury is carefully instructed that

Officers Argento and Sansone did not in-

flict these injuries, but rather that they

=35-

may be held responsible for them merely be-

cause they are injuries incurred somehow

while under police supervision and pro-

tection will not prevent the injustice

likely to result. Jurors cannot be fair

when they do not know the facts. Even if

it is clearly explained to a jury that

Sansone and Argento were not found to have

inflicted the injuries, their inclusion

cannot but make jurors wonder as to why,

then, they are to consider these injuries

in assessing damages against these two

men. After being told that the two offi-

cers have been found guilty of a

"conspiracy" to deprive Lenard of his

rights, such jurors are likely to assume

the worst, and return an inflated and

wholly unwarranted award of damages.

In any retrial on damages, evidence of

physical injuries of Lenard must in law and

in fairness to these individual defendants

-36-

not be permitted. As elsewhere stated,

however, judgment in favor of officers

Argento and Sansone should be granted in-

stead of a retrial.

II. ATTORNEY'S FEES AND COSTS WERE IMPROP-

ERLY AWARDED FOR THIS APPEAL

Without waiver of the foregoing, de-

fendants assert that even if the Court's

affirmance on Count II is allowed to stand,

plaintiff should not be awarded fees and

costs involved in this appeal.

As is apparent from the briefs filed by

the defendants in this appeal and the

opinion of the Court of Appeals below, this

appeal by defendants was necessitated by

the substantial and obvious errors found

by the Court of Appeals to have been com-

mitted at trial by the district court,

e.g., the submission to the jury of the

three-tiered damage formula, which includ-

ed the non-existent category of "substan-

tial damages." Under these circumstances,

=37=

and in light of the results of the appeal

in this matter, i.e., the success of defen-

dants on most substantive points raised on

appeal, petitioners respectfully submit

that it would be contrary to the intended

purposes of 42 U.S.C. §1988 and Rule 52 of

the Federal Rules of Civil Procedure to

award either attorney's fees or costs to

respondent related to the one substantive

issue on this appeal on which respondent

was successful, i.e., the affirmance of

the liability verdict on Count II.

Petitioners respectfully submit that

in light of the foregoing, this case pre-

sents "special circumstances" which would

justify a denial of an award of fees and

costs. See, e.g., Newman v. Piggie Park

Enterprises, 390 U.S. 400 (1968).

While the experience of the under-

signed attorneys with the trial judge in

this case, aside from our strong but re-

=38-

spectful disagreement with his jury in-

structions, verdict forms and a number of

rulings, has been such that we enjoyed par-

ticipating in this case before him, as we

do in other cases before him, and that we

respect his integrity. Mindful that a case

is not the lawyer's case, but the party's

case, we have discussed in full the opinion

of this Court with our clients. They bear

no resentment to the particular trial

judge despite their individual feelings as

to some of the rulings made by that judge

but are fearful that that judge's views as

to the application of the law to the facts

of this case, being very different from the

Appeal Court's unanimous opinion, which

they have read, is such that they question

the need for the removal of the Seventh

Circuit Rule 18, which has been explained

to them. While they are fearful of causing

an unfavorable impression with said trial

=-39-

judge with this request, they request that

this Court order that Seventh Circuit Rule

18 not be eliminated in this case so that

the judicial selection will take its

normal course rather than structuring this

case's return to the same trial judge if

any retrial is to be had.

CONCLUSION

For the reasons stated, petitioners

respectfully ask this Court to proceed as

follows:

1. TO reverse the 7th Circuit U.S.

Court of Appeals and rule that Count II,

the alleged conspiracy, based on 42 U.S.C.

1985(3) be dismissed, the key reason for

which, being that the only conspiracy

(even arguendo) shown by :the evidence was

no broader than to commit the acts for

which petitioner's Argento and Sansone

have been found by the jury to be not

guilty, i.e., of denying Lenard's civil

-40-

rights by beating. This, it is noted was

conceded by one of Lenard's trial counsel.

2. Without prejudice to the _ fore-

going, in the event the Court does not pro-

ceed as prayed for in the preceding para-

graph, to rule that in any retrial on the

issue of damages that the physical injur-

ies received in the beating alleged but

judicially found not to have occurred,

cannot be utilized as evidence nor for

argument for the reasons stated in the

petition.

3. Without prejudice to the _ fore-

going, that in the event the Court does not

proceed as prayed for in the two preceding

paragraphs, to set forth any cautionary

and guideline conditions that should

govern any retrial, specifically what

warnings should accompany the jury in-

structions and evidence, if any, as to in-

juries to be permitted, and rule with

-4l-

respect to the appropriateness of fees for

the representation of Lenard, including

the denial of all fees in appellate tribu-

nals for the reasons that all appellate

activity has been made necessary due to the

erroneous rulings of the trial court which

were not the fault nor responsibility of

these petitioners and that for the reasons

Stated, that the Court of Appeals suspen-

sion of 7th Circuit Rule 18 not be permit-

ted.

4. To note that the listing of the

above alternatives is made in discharge of

the duty of the undersigned as lawyers but

is not intended in derogation of the com-

mittment to the relief prayed for in para-

graph no. l.

-42-

Respectfully submitted,

John G. Poust

Counsel of Record

Stephen E. Sward

Christine M. Wheelock

. John G. Poust

| Stephen E. Sward

Christine M. Wheelock

ROOKS, PITTS, FULLAGAR AND POUST

55 West Monore Street, #1500

Chicago, Illinois 60603

(312) 372-5600

-43-

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

: TABLE OF CONTENTS

APPENDIX

DOCUMENT PART PAGE

Opinion of The A la

Court of Appeals

for The Seventh

Circuit issued

February 1, 1983

Mandate of The Court B lb

of Appeals for The

Seventh Circuit,

dated February l,

1983

Order of The Court B 3b

of Appeals Denying

Petition for Re-

hearing, dated March

10, 1983

Order of The Court B 5b

of Appeals Staying

Issuance of Mandate,

dated March 18, 1983

Final Memorandum © le

Opinion of District

Court on Attorney's

Fees, dated July 29,

1981

Memorandum Opinion of C Se

District Court on

Attorneys' Fees,

dated May 29, 1981

APPENDIX

DOCUMENT PART PAGE

Memorandum Opinion of C lle

District Court Enter-

ing Judgment on the

Verdicts

Jury Verdicts on D ld

Liability and

Damages

Texts of Constitutional E le

Provisions, and Rules

Involved

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 80-2602, 80-2666,

81-2036, 81-2434

BENNIE LENARD,

Plaintiff-Appellee,

Cross-Appellant,

Ve

ROBERT ARGENTO & JOSEPH SANSONE,

Defendants-Appellants,

Vv.

VILLAGE OF MELROSE PARK,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois,

Eastern Division. No. 77 C 1208

Joel M. Flaum, Judge.

ARGUED NOVEMBER 10, 1981 -

DECIDED FEBRUARY 1, 1983

Before PELL, Circuit Judge, CUDAHY,

Circuit Judge, and GRANT, Senior District

Judge.*

* Honorable Robert A. Grant, Senior District Judge

of the United States District Court for the

Northern District of Indiana, sitting by designa-

tion.

la

GRANT, Senior District Judge. This

case arises from the events of January 3l,

1977 involving plaintiff-appellee, Bennie

Lenard, and several police officers of the

Village of Melrose Park, Illinois. The

particular events of the case are disputed

but we will attempt to provide a fair sum-

mary of the facts. |

Lenard, a 41 year old black mechanic,

discovered when he left work at 7:00 a.m.

on January 31 that his car had a flat tire.

While waiting for the spare tire to be

repaired, he and a co-worker went to a.

neighborhood bar where Lenard consumed two

shots of vodka and two glasses of beer.

After changing the tire, Lenard returned

to the bar where he consumed in a 2 to 2

1/2 hour period two more shots of vodka and

three glasses of beer. He had nothing to

eat during this time. About 1:00 p.m.,

Lenard and his co-worker left the bar to go

to the co-worker's home, each driving his

2a

own vehicle. While en route, Lenard col-

lided with a car driven by Andrea Dreyer, a

defendant in the district court trial but

not a party in this appeal. There is a

dispute whether Lenard's car crossed the

center line and struck Dreyer's vehicle.

The damage to each car was minor but

the drivers quarreled regarding fault.

Dreyer, in her deposition, admitted shout-

ing vulgarities at Lenard. Witnesses,

including a passenger in the Dreyer car,

testified Lenard appeared drunk and that

he struck Dreyer's shoulder with his fist

and grabbed her. The Melrose Park police

were called with Officer Joseph Sansone

the first to arrive at the accident scene.

Officer Robert Argento arrived several

minutes later.

Lenard was arrested for drunk driving

and several other traffic offenses. A

scuffle occurred while the officers tried

3a

to handcuff Lenard and place him in

Argento's squad car. Lenard contends he

was beaten by Argento with his nightstick

while in the squad car and knocked uncon-

scious. Argento searched Lenard's car

after the arrest and discovered a handgun

and an opened half can of beer.

After his arrest, Argento drove Lenard

to the Melrose Park police station where

Lenard contends he was further kicked,

beaten and called a "black nigger." His

next memory is that of lying on the wet

floor of a cell in his underwear in extreme

pain and cold. He requested to go to a

hospital but someone said: "Leave. him

alone. He doesn't want to go to the hospi-

tal." Lenard was unable to identify any of

the officers because of his’ facial

injuries. Lenard remained in custody at

the Melrose Park police station until late

that evening. During the evening while

Lenard was still in a cell in the Melrose

Park police station, Floydell Henning

(Lenard's stepson) testified he heard

racial slurs, i.e., "Chicken George,” over

the loudspeaker in the station. He could

not identify the parties involved. At one

point while still in police custody,

Lenard was brought to the Westlake

Community Hospital where he was treated

for his injuries and returned to the

police. Lenard complains that his family

came to the jail on three occasions that

evening before his release was finally

obtained. Lenard was hospitalized for his

injuries for 39 days and later underwent

surgery for the injuries. There was medi-

cal testimony at trial that he suffered

permanent'- sight impairment from his

injuries.

Officers Argento and Sansone deny that

Lenard was beaten at any time with clubs or

anything else. Two witnesses present at

the accident scene testified that they did

not see Lenard beaten. The police contend

that an altercation occurred in the icy

police station parking lot while attempt-

ing to remove Lenard from the squad car.

Because of his size (6'3", 260 pounds) and

drunken condition, three officers,

Argento, Culotta and Zito, were necessary

to remove him from the car. The officers

testified that Lenard swore at them and

resisted being taken into the _ police

station. The officers further contend

that Lenard repeatedly fell in the icy lot

and on the stairway of the station because

of his constant struggling. They deny that

any beating occurred and = maintained

Lenard's injuries occurred while resisting

his removal into the police station.

Lenard was charged with the following

state offenses: driving while under the

influence of intoxicating beverage; impro-

per traffic lane usage; failure to reduce

speed to avoid an accident; battery; tran-

sportation or possession of alcoholic

liquor; possession of a firearm without a

firearm identification car; unlawful tran-

sportation or use of weapons; resisting a

police officer and driving without a valid

driver's license.

A jury convicted Lenard of the petty

offense of transportation of alcoholic

liquor, I111.Rev.Stat. 1977, Ch. 95 1/2,

par. 11-502, and acquitted him on all other

charges. The transportation conviction

was subsequently reversed and remanded by

the Illinois Appellate Court because of

the trial court's refusal to allow Lenard

to cross-examine the police officers for

impeachment purposes. People v. Lenard,

79 I11l.App.3d 1046, 398 N.E.2d 1054

(1979). In dicta, however, the court did

7a

State that "[t])he evidence adduced was

ample to sustain defendant's conviction,"

Id. at 1058.

Lenard initiated this action in a

five-count complaint pursuant to several

sections of the Civil Rights Act of 1871,

42 U.S.C. §§1983, 1985 and 1988. The named

defendants included the Village of Melrose -

Park, Robert Argento, Joseph Sansone,

Bruce Culotta, George Zito, Andrea Dreyer,

Dr. T. Mehrpuyan and Westlake Community

Hospital. Westlake Hospital and Dr.

Mehrpuyan reached a settlement with Lenard

and they, along with Count IV of the

Complaint, were dismissed from the suit.

Count I of the Second Amended Complaint

charged Police Officers Argento, Sansone,

Culotta and Zito with violating 42 U.S.C.

519831 by beating Lenard. Count II charged

these same officers with conspiracy to

deprive equal protection of the law by use

of brutal and excessive force on Lenard in

violation of 42 U.S.C. §1985(3)* and the

1 49 U.S.C. §1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custan, or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. §1985(3) provides:

(3) If two or more persons in any State or

Territory conspire or go in disguise on the

highway or on the premises of another, for the

purpose of depriving, either directly or

indirectly, any person or class of persons of

the equal protection of the laws, or of equal

privileges and immunities under the laws; or for

the purpose of preventing or hindering the con-

stituted authorities of any State or Territory

from giving or securing to all persons within

such State or Territory the equal protection of

the laws; or if two or more persons conspire to

(continued on next page)

9a

Village of Melrose Park for failure to pro-

perly screen, hire, train and supervise

its police employees in violation of 42

U.S.C. §§1983 and 1985. Count III charged

conspiracy to impede, obstruct and defeat

the due course of justice with intent to

deny equal protection in violation of 42

~ (eont inued)

prevent by force, intimidation, or threat, any

citizen who is lawfully entitled to vote, from

giving his support or advocacy in a legal man-

ner, toward or in favor of the election of any

lawfully entitled qualified persons as an elec-

tor for President or Vice President, or as a

Menber of Congress of the United States; or to

injure any citizen in person or property on

account of such support or advocacy; in any case

of conspiracy set forth in this section, if one

or more persons engaged therein do, or cause to

be done, any act in furtherance of the object of

such conspiracy, whereby another is injured in

his person or property, or deprived of having

and exercising any right or privilege of a citi-

zen of the United States, the party so injured

or deprived may have an action for the recovery

of damages occasioned by such injury or depriva-

tion, against any one or more of the conspira-

tors.

10a

U.S.C. § 1985(2)°. So charged under Count

III were the Village of Melrose Park,

Argento, Sansone, Culotta, Zito, Dreyer,

Westlake Community Hospital and Dr. T.

Mehrpuyan (the latter two were dismissed

before trial). Count V charged Argento,

Sansone and Dreyer with malicious prosecu-

tion for the charges resulting from the

3 49 U.S.C. §1985(2) provides:

(2) If two or more persons in any State or

Territory conspire to deter, by force, intimida-

tion, or threat, any party or witness in any

court of the United States fran attending such

court, or fram testifying to any matter pending

therein, freely, fully, and truthfully, or to

injure such party or witness in his person or

property on account of his having so attended or

testified, or to influence the verdict, present-

ment, or indictment of any grand or petit juror

in any such court, or to injure such juror in

his person or property on account of any ver-

dict, presentment, or indictment lawfully

assented to by him, or of his being or having

been such juror; or if two or more persons con-

spire for the purpose of impeding, hindering,

obstructing, or defeating, in any manner, the

due course of justice in any State or Territory,

with intent to deny to any citizen the equal

protection of the laws, or to injure him or his

property for lawfully enforcing, or attempting

to enforce, the right of any person, or class of

persons, to the equal protection of the laws;

lla

traffic accident and _ arrest, thereby

depriving Lenard of his civil rights under

42 U.S.C. §1983.

Bifurcated trials lasting five weeks

were held on liability and damages in

February and March, 1980. A default judg-

ment was entered against defendant Dreyer.

In the liability phase of the trial, the

jury returned a verdict for all the defen-

dants on the “beating” charge of Count I.

However, the jury found for Lenard on the

two conspiracy charges of Counts II and III

and the malicious prosecution charge of

Count V against Argento and Sansone only.

In the damage portion of the trial, Lenard

was prohibited from presenting any damages

resulting from the "beating" because the

4

jury found no "beating" under Count I. No

4 wTHE COURT: To the extent that the proffer

relates to injuries dericed [sic] as a result of

the incident of 1/31/77, this Court, in light of

the jury's verdicts in this case, would preclude a

presentation of such evidence, if it relates, as

has been described by Mr. Bertucci. And the prof-

(continued on next page)

12a

Other evidence of damages was presented by

Lenard. Over defense objection, the jury

was given a three-tier jury verdict form by

the trial judge and instructions relating

to possible damages under that form. The

jury returned a finding of $10,000 actual

and compensatory damages, $125,000 "sub-

stantial damages" and $150,000 punitive

damages against Argento and $75,000 puni-

tive damages against Sansone.

The Village of Melrose Park, Argento

and Sansone raise four issues on this

appeal. First, whether the district

court's use of a three-tier damage verdict

form and its damage instructions which

stressed "substantial damages” were erron-

eous. Second, whether the amount of

damages awarded by the jury is against the

(cont inued)

fer, of course, may stand and objection to the

Court excluding it may stand; and in light of the

Court's earlier carments, as well as these, would

rule that inadmissible for submission to the jury

for consideration in a damage phase of the trial."

(Tr. 2308).

13a

manifest weight of evidence and excessive

as a matter of law. Third, whether there

was ample evidence to establish a good

faith belief in the officers for probable

cause to arrest Lenard and prosecute the

criminal charges requiring a directed ver-

dict for the defendants on the malicious

prosecution charge of Count V. Fourth,

whether a conspiracy without an overt act

can be the basis of a damage award or

whether there can be a duplication of an

award for conspiracy when damages have

been already awarded for the act,

On cross-appeal, Lenard raises several

issues. First, whether the trial court

erred in permitting a good faith immunity

defense to be asserted by the Village of

Melrose Park. Second, whether the trial

court erred in not specifically mentioning

Lenard's claim of a beating in its verdict

form. Third, whether the jury verdict for

the "beating" count was against the mani-

14a

fest weight of the evidence. Claims are

also raised regarding attorneys' fees and

costs under 42 U.S.C. §1988, 28 U.S.C.

§1920 and Fed. R. Civ. P. 54(d). Both

Lenard and the defendants raise other

Claims of error, including arguments of

various counsel, instructions to the jury

and the district court's judgments on

Motions in Limine. Each will be addressed

individually.

II. Liability

a. Police Officers

Count I of the Second Amended

Complaint alleged that the four named

police officers beat Lenard while he was in

police custody in violation of his civil

rights. This beating was the seminal issue

of the entire case. Lenard testified that

he was cursed and struck by Argento after

he was placed in the backseat of Argento's

Squad car. Lenard contends that he was

struck about his head and right eye with

15a

what appeared to be a stick. After being

knocked unconscious, Lenard testified his

next recollection was that of sitting in

the squad car as it pulled up to the police

Station and hearing Argento tell someone

"I got a big Black nigger." He testified

that he was grabbed about the neck and

pulled from the car. He fell to his knees

and was kicked and beaten. Lenard's next

memory is that of being in a cold wet cell

in his underwear. Lenard could not iden-

tify any of the officers involved because

of his facial injuries.

Several witnesses at the accident

scene testified that they did not see

Lenard being beaten. Officers Argento,

Zito and Culotta testified Lenard was

injured in two falls in the icy parking lot

and by a fall on the stairwell in the

police station. These officers testified

that Lenard was struggling and resisting

his removal into the station. His size,

16a

drunken condition, his struggling, the

physical weather conditions all contri-

buted to the falls. The jury, after hear-

ing all the testimony, returned a verdict

that Lenard was not beaten.

While there is clearly a conflict of

testimony, the question of credibility and

weight of the evidence is within the pur-

view of the jury. Pinkowski v. Sherman

Hotel, 313 F.2d 190, 193 (7th Cir. 1963).

A jury verdict cannot be lightly set aside

so long as it has a reasonable basis on the

record. zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 123 (1969);

Wyant v. J.I. Case Co., 633 F.2d 1254,

1256 (7th Cir. 1980). Viewing the

evidence in a light most favorable to the

defendants, the prevailing parties, (Smith

v. Rogers, 290 F.2d 601, 602 (7th Cir.

1961)), there was a reasonable basis in the

record for the jury verdict and the

evidence will not be reweighted. Rupe v.

17a

Spector Freight Systems, Inc., 679 F.2d

685, 697 (7th Cir. 1982) (Judge Swygert

dissenting); Musgrave v. Union Carbide

Corp., 493 F.2d 224, 229 (7th Cir. 1974).

The jury determination that Lenard was not

beaten will not be disturbed.

Counts II and III of the complaint

charged the named officers with violation

of §§1985(2) and (3). The jury found, how-

ever, only Argento and Sansone liable for

civil rights conspiracy. Argento and

Sansone argue that they cannot be liable

for a conspiracy to "beat" when the jury

found that there was no "beating". How-

ever, the charge given to the jury was not

a "conspiracy to perform a beating" but

rather a conspiracy to deprive [Lenard]

due course of justice and equal protection

of the law. (Tr. 2202-03).

As this court outlined in Hampton v.

Hanrahan, 600 F.2d 600 (7th Cir. 1979),

rev'd in part on other grounds, 446 U.S.

18a

754 (1980):

A civil conspiracy is "a combina-

tion of two or more persons act-

ing in concert to commit an

unlawful act, or to commit a law-

ful act by unlawful means, the

principal element of which is an

agreement between the parties ‘to

inflict a wrong against or injury

upon another,’ and ‘an overt act

that results in damage',."

Rotermund v. United States Steel

Corp., 474 F.2d 1139 (8th Cir.

973) (citation omitted).

xk

A plaintiff seeking redress

need not prove that each partici-

pant in a conspiracy knew the

"exact limits of the illegal plan

or the identity of all partici-

— therein." Hoffman-LaRoche

Inc., su re 447 F. ve (re

Gis. i at 875. An express

agreement {Miah all the conspira-

tors is not a necessary element

of a civil conspiracy. The

participants in the conspiracy

must share the general conspira-

torial objective, but they need

not know all the details of the

Plan designed to achieve _ the

objective or possess the same

motives for desiring the intended

conspiratorial result. To demon-

Strate the existence of a con-

spiratorial agreement, it simply

must be shown that there was "a

single plan, the essential nature

and general scope of which [was]

19a

known to each person who is to be

held responsible for its conse-

quences." Id.

600 F.2d at 620-21.

Thus, there cannot be a civil cause of

action for conspiracy under §1985 without

an overt act. Williams v. St, Joseph

Hospital, 629 F.2d 448, 451 n.3 (7th Cir.

1980). "(i]t is the overt act which moves

the conspiracy from the area of thought and

conversation into action and causes the

civil injury and resulting damage.”

Hoffman v. Halden, 268 F.2d 280, 295 (9th

Cir. 1959), overruled in part on other

grounds, Cohen v. Norris, 300 F.2d 24 (9th

Cir. 1962).

While Sansone's contact with Lenard

was primarily at the accident’ scene,

Argento did place Lenard in his police car,

drive him to the Melrose Park police sta-

tion and escort him into the police sta-

tion. There was testimony at trial that

Sansone called Lenard a "shine" to a tow

20a

truck driver at the accident scene. Lenard

testified that Argento called him a "big

Black nigger" and hit him in the right eye

and about the face with what appeared to be

a stick. While the evidence does not link

Argento and Sansone to all the events of

January 31, there was sufficient evidence

for a jury to reasonably believe that there

was an overt act and circumstantial evi-

dence of an agreement among the police,

particularly Argento and Sansone, to con-

spire to deprive Lenard of his civil

rights. Furthermore, there was sufficient

evidence of racially discriminatory animus

to meet the Griffin standard for §1985 con-

spiracies.

The language requiring intent

to deprive of equal protection,

Or equal privileges and immun-

ities, means that there must be

some racial, or perhaps otherwise

class-based, invidiously discri-

minatory animus behind the con-

spirators' action. The con-

spiracy, in other words, must aim

at a deprivation of the equal

enjoyment of rights secured by

law to all.

21a

Griffin v. Breckenridge, 402 U.S. 88, 102

(1970) (footnotes omitted) (emphasis in

original). See also Murphy v. Mount Carmel

High School, 543 F.2d 1189, 1192 n.1 (7th

Cir. 1976); Potenze v. Schoessling, 541

F.2d 670, 672 (7th Cir. 1976); Lessner v.

Braniff Airways, Inc., 518 F.2d 538, 540

(7th Cir. 1975).

While the jury may have found insuffi-

cient evidence of a beating, that does not

mean that there was insufficient evidence

of a §1985(3) conspiracy. The jury could

have found that there was insufficient

evidence to tie all the defendants to the

alleged beating, yet enough evidence,

based primarily upon the injuries

sustained by Lenard during his police cus-

tody, to reasonably conclude that at least

Argento and Sansone had entered into and

committed "an act" in the furtherance of a

conspiracy to deny equal protection.

22a

As pointed out in Hoffman-LaRoche,

Inc. v. Greenberg, 447 F.2d 872, 875 (7th

Cir. 1971):

- « « [c]ircumstantial evidence

may provide adequate proof of

conspiracy. The law does not

demand proof that each conspira-

tor knew the exact limits of the

illegal plan or the identity of

all participants therein.

Thus, while the jury determined that the

evidence did not support the finding of a

beating, there was a determination of

sufficient evidence to find a conspiracy

to deprive equal protection.

In such a situation, “it is the

jury which ‘weighs the contradic-

tory evidence and inferences’ and

draws ‘the ultim te conclusion as

to the facts'." (Citing

Continental Ore Co. vy. Union

Carbide and Carbon cCorp., 370

U.S. 690, 700-01 (1962) .]

Hampton v. Hanrahan, 600 F.2d at 621. From

a review of the facts and record in this .

case, it was not unreasonable for this jury

to reach the verdicts regarding Counts I

and II.

23a

Count III specifically alleged that

the named officers conspired together with

the purpose of impeding, obstructing, hin-

dering and defeating the due course of jus-

tice and to deprive Lenard of equal protec-

tion of the law. This count is complemen-

tary to Count V of the Complaint charging

malicious prosecution. All parties agree

that Count III goes to a conspiracy to mal-

iciously prosecute Lenard for the traffic,

liquor and gun violations. In light of our

holding regarding the malicious prosecu-

tion charge, infra, we must reverse the

jury verdict on Count III for failure of an

act implementing the conspiracy.

In his Second Amended Complaint,

Lenard charged in Count V that Argento,

Sansone and Dreyer denied him his rights to

be free from malicious prosecution under

color of law in violation of §1983. This

court has held that under a charge of a

§1983 violation, the test is ". .. not

24a

whether the arrest was constitutional or

unconstitutional or whether it was made

with or without probable cause, but

whether the officer believed in good faith

that the arrest was made with probable

cause and whether that belief was reason-

able," Brubaker v. King, 505 F.2d 534,

536-37 (7th Cir. 1974). See Bivens v. Six

Unknown Named Agents of the Federal Bureau

of Narcotics, 456 F.2d 1339 (2d Cir. 1972),

on remand from 403 U.S. 388 (1971) .> See

5 Therefore, to prevail the police officer need

not allege and prove probable cause in the consti-

tutional sense. The standard governing police

conduct is canposed of two elements, the first is

subjective and the second is objective. Thus the

officer must allege and prove not only that he

believed, in good faith, that his conduct was law-

ful, but also that his belief was reasonable. And

so we hold that it is a defense to allege and prove

good faith and reasonable belief in the validity

of the arrest and search and in the necessity for

carrying out the arrest and search in the way the

arrest was made and the search was conducted. We

think, as a matter of constitutional law and as a

matter of conmon sense, a law enforcement officer

is entitled to this protection,

456 F.2d at 1348.

\

25a

also Terket v. Lund, 623 F.2d 29, 31 (7th

Cir. 1980) (Lack of probable cause and

malice must be shown. Actual existence of

probable cause is an absolute bar to a

§1983 action); Boscarino v. Nelson, 518

F.2d 879 (7th Cir. 1975); Tritsis v.

Backer, 501 F.2d 1021 (7th Cir. 1974).

The question then is whether Officers

Argento and Sansone arrested Lenard with

good faith belief that there was probable

cause for the arrest and whether that

belief was reasonable. The Supreme Court

has held that:

[t]he quantum of information

which constitutes probable cause-

-evidence which would “warrant a

man of reasonable caution in the

belief" that a felony has been

committed, Carroll Vv. United

States, 267 U.S. 132, 162--must

be measured by the facts of the

particular case.

Wong Sun v. United States, 371 U.S. 471,

479 (1962). This court has held in United

States v. Ganter, 436 F.2d 364, 368 (7th

Cir. 1970), that:

26a

The determination of probable

cause does not rest upon a tech-

nical framework; instead it

depends on the factual and prac-

tical considerations of everyday

life on which reasonable and pru-

dent men, not legal technicians,

act. Brinegar v. United States,

338 U.S. 160 175-176, 69 S.Ct.

1302, 93 L.Ed. 1879 (1949).

"Probable cause exists if the

facts and circumstances known to

the officer warrant a prudent man

in believing that the offense has

been committed.” Henry v. United

States, 361 U.S. 98, 102, 80

S.Ct. 168, 171 4 UL.Ed.2d 134

(1959); Thornton v. Buchmann, 392

F.2d 870, 872-73 (70h Cie.

1968).

See also United States v. Watson, 587 F.2d

365, 368 (7th Cir. 1978).

In examining the particulars of this

case, it is undisputed that Lenard con-

sumed four shots of vodka and five glasses

of beer in a period of 5-6 hours while eat-

ing nothing and that while driving his

automobile he became involved in a minor

auto accident. Both officers were called

to the scene to investigate the accident

when a dispute over fault arose. While the

27a

offenses did not occur in the presence of

the officers, they arrived upon the scene

shortly thereafter. Testimony at trial

indicated that Dreyer complained that

Lenard has crossed the center line and

struck her car. Upon the basis of this

information and Lenard's appearance at the

scene, it would be reasonable for the offi-

cers to have a good faith belief that there

existed probable cause to arrest Lenard on

the traffic violations. While at the

scene, Officer Argento, during a search of

Lenard's car, discovered the firearm on

the seat and the open can of beer. This

Court does not lightly set aside this jury

verdict but under the facts which were

before the officers, we find that there was

probable cause for Lenard's arrest for gun

possession and liquor possession, and that

it was reasonable for Argento and Sansone

to have a good faith belief in the probable

cause. We reverse the finding of malicious

28a

prosecution and the finding of conspiracy

to obstruct justice dependent upon this

prosecution.

b. Village of Melrose Park

Count II of the Complaint alleged:

44. Defendant "Village" by

its policy and custom of failing

to properly screen, hire, train

and supervise its police

employees encouraged and_= san-

ctioned the misbehavior com-

plained of herein, with the know-

ledge that it would deprive

plaintiff of his rights, privi-

leges and immunities, including

Equal Protection of the Laws.

(R. 95).

Count III of the Complaint charged

that it was the policy of the Village to

encourage, sanction and "cover-up" acts of

misconduct by its police employees. The

count specifically alleges that the inter-

nal investigation ordered by the Chief of

Police was conducted solely to disprove

Lenard's allegations and cover-up’ the

police misconduct. Lenard further alleges

that the policy and practice of the Village

29a

to encourage, sanction and conceal unlaw-

ful acts by its police employees was so

broad and pervasive that it encompassed a

large number of the police department

including the Chief from the time of the

incident to the present day.

Liability of municipalities must be

based on something more than a mere right

to control employees. A “municipality

cannot be held liable under §1983 on a res-

pondeat superior theory." Monell v. New

York City Department of Social Services,

436 U.S. 658, 691 (1977). As the Supreme

Court held in Rizzo vy. Goode, 423 U.S.

362, 371 (1975), there must be an “affirma-

tive link between the occurrence of the

various incidents of police misconduct and

the adoption of any plan or policy by peti-

tioners--express or otherwise--showing

their authorisation Or approval of such

misconduct." The Court in Rizzo further

held that the "failure to act in the face

30a

of a statistical pattern" of police mis-

conduct was not sufficient to base liab-

ility on the City of Philadelphia. 423

U.S. at 376. In Monell there was this same

requirement of showing an implementation

Or execution of a governmental policy

before municipal liability could be

imposed. The resulting case law from Rizzo

finds ". . . that a failure of a supervi-

sory official to supervise, control, or

train the offending individual officers is

not actionable absent a showing that the

official either encourgaged the specific

incident of misconduct or in some way

directly participated in it." Hays v.

Jefferson County, Ky., 668 F.2d 869, 874

(6th Cir. 1982), cert. denied, U.S.

, 5) U.S.L.W. 3254 (U.S. Oct. 5,

1982). At a minimum, a plaintiff must show

that the official at least implicitly

authorized, approved, or knowingly

acquiesced in the unconstitutional conduct

3la

of the offending officers. Id. Inaction

by the Village officials would also not

attach liability. There can be liability

only when there is an extremely high degree

of culpability for inaction. The Second

Circuit has held:

- « « @ mere failure by’ the

county to supervise its employees

would not be sufficient to hold

it liable under §1983. However,

the county could be held liable

if the failure to supervise or

the lack of a proper training

program was so severe as to reach

the level of "gross negligence"

or "deliberate indifference" to

the deprivation of the plain-

tiff's constitutional rights.

Owens v. Haas, 601 F.2d 1242, 1246 (2d

Cir.), cert. denied, 444 U.S. 980 (1979)

(citation omitted). Only where there is a

pattern of constitutionally offensive acts

with failure to invoke remediai measures

will there result in municipal liability

for subsequent violations "if the supervi-

sor's inaction amounts to deliberate

indifference or tacit authorization of the

32a

offensive acts." Turpin v. Mailet, 619

F.2d 196, 201 (2d Cir. 1980). Until this

present case, this court has not addressed

these liability holdings of Monell or

Rizzo, though they have been relied upon in

Spriggs v. City of Chicago, 523 F.Supp.

138, 142 (N.D.I11. 1981) and Jordan v. City

of Chicago, Department of Police, 505

F.Supp. 1 (N.D.I11. 1980).

After an examination of approximately

2400 pages of transcript, we find insuffi-

cient evidence to establish a failure by

the Village to properly screen, hire,

train and supervise its employees. Defen-

dant Argento was a police officer for

another community before his employment by

Melrose Park. He and Sansone attended the

Chicago Police Academy after employment.

While Chief of Police Cimino had received

no formal police training, he was a veteran

of thirty years on the police force. Chief

Cimino, during direct examination, testi-

33a

fied that his officers did receive train-

ing on physical restraint of prisoners.

The identity of those officers was not pur-

sued by Lenard's counsel. Several other

officers, including defendants Culotta and

Zito, testified but were not questioned by

Lenard regarding their police training.

The Village of Melrose Park did not

have to establish at the time of this inci-

dent a system of internal investigation

nor written regulations regarding treat-

ment of prisoners or the use of night-

sticks. Directions, department policy and

instructions were transmitted by word of

mouth via meetings with staff officers

every three months or general whole

department meetings held twice a year.

Nightsticks are issued to the officers

only one week a year during a community

feast and returned to the department at the

end of that week. They were not standard

uniform equipment requiring continual

34a

restraining.

Chief Cimino testified that on several

occasions over eleven years the FBI had

questioned officers regarding complaints

but nothing ever became of those inci-

dents. When a citizen complaint came to

the attention of the Chief, he looked into

the matter and talked the matter out with

the officer and the complainant. For a

small community, this personal approach to

a community problem seems reasonable. The

internal investigation regarding the

Lenard incident was the first that Chief

Cimino felt a need to order. The investi-

gation was conducted by Officer Carpino

and no disciplinary action resulted from

this investigation. The investigation was

still open at the time of trial.

Lenard argues that the investigation

was conducted to disprove his allegations

and cover-up police misconduct. We found

no evidence to support these allegations.

35a

Officer Carpino did read at trial from a

police report one line of which read "dis-

prove allegation by the defendant and

Lenard was charged with DWI" (Tr. 1295).

However, when asked what was the purpose of

the investigation, Carpino's reply was "to

corroborate or contradict any of the evi-

dence, whichever it may be, regardless to

where it led." (Tr. 1297).

In light of the standard outlined in

Monell, supra, Rizzo, supra and Turpin,

Supra, the review of the evidence in this

case clearly did not reveal sufficient

evidence that a reasonable man _ would

return a contrary verdict regarding Count

II or Count III in regard to the Village of

Melrose Park. Most definitely the evi-

dence did not rise to the standard of

liability necessary under Rizzo and its

progeny.

Similarly, there was not sufficient

evidence to show a conspiracy on the part

36a

of the Village or its officials with the

police officers or defendant Dreyer. The

evidence did not show a custom or practice

upon the part of the Village or through its

officials with its police officers to

deprive certain citizens of their consti-

tutional rights through the use of physi-

cal force or criminal prosecution. From a

reading of Andrea Dreyer's deposition

entered into the record at trial, she had

four contacts with the Melrose Park

police--the day of the accident, the

following day when she filed a battery com-

plaint and two telephone conversations

after Lenard filed suit. The only possible

conspiracy would have been in regard to the

accident report and the battery charge.

But there was no reasonable basis for the

Village to have refused to pursue the com-

plaints of a citizen relating to this acci-

dent or the battery charge filed. MThere

was no evidence to show that the Village

37a

provoked the complaint filed by Dreyer.

The presence of the Village attorney

during an interview of Argento, Sansone

and Culotta by State's Attorney Kling on

February 14, 1977 and the Village attor-

ney's restrictions upon that interview,

appear to be no more than legal counseling

of Village employees during an admittedly

unofficial investigation rather than a

cover-up. The Village cooperated with the

State's Attorney's office providing state-

ments in its possession. The officers even

took Kling to the accident scene and

reviewed the events with him. Before a

complaint was filed by Lenard and on the

basis of newspaper articles alone, Chief

Cimino initiated the first internal inves-

tigation of police officers in Melrose

Park. While Lenard chooses to see conspi-

racy in these activities, we see none.

It should be pointed out that Lenard

argues on appeal that the trial court erred

38a

when it instructed the jury regarding good

faith immunity defense accorded the

Village. At the time this trial was con-

ducted, municipalities possessed a quali-

fied immunity under Monell v. New York,

supra, through the trial court was aware of

pending action in the Supreme Court on this

issue. (Tr. 1739-40, 1743). Six weeks

after the conclusion of the trial, the

Supreme Court held municipalities have no

immmunity from liability under 42 U.S.C.

§1983 for their constitutional violations,

and that they may not assert the good faith

of their officers as a defense. Owens v.

City of Independence, Mo., 445 U.S. 622

(1980). On appellate review, we would

ordinarily be obligated to apply the law as

of the time of the appeal versus as of the

time of trial. National Labor Relations

Board v. Food Store Employees Union, Local

347, 417 U.S. 1, 10 n.10 (1974); Bradley v.

Richmond School _ Board, 416 U.S. 696

39a

(1974); Rey v. Rutherford, 645 F.2d 880,

883 (10th Cir. 1981), but we need not

address the issue of the jury instruction

in this case.

At the close of Lenard's case and at

the close of all the evidence, the Village

moved for a Directed Verdict which was

reserved by the district court. The jury

then returned verdicts in favor of the

Village as to all alleged violations. Not-

withstanding the jury verdict, after the

close of the trial, the district court

granted the Village's Motion for a

Directed Verdict effective as of the close

of the evidence. (Corrected Judgment was

entered October 3, 1980 [R.277]).° Thus,

6 "Today the court has amended its Judgment dated

March 19, 1980 which mistakenly entered judgment

upon the jury's verdict in favor of the Village of

Melrose Park and has entered judgment on its order

granting the motion of the Village of Melrose Park

for a directed verdict at the close of all the

evidence." Footnote to Memorandum Opinion October

3, 1980. (R. 281).

40a

the issue on appeal is not whether the

trial court erred in granting a Directed

Verdict in favor of the Village. The

Directed Verdict took the judgment from

the jury and made it that of the court.

The standard for a Directed Verdict

was recently stated by this Court in

Richardson v. City of Indianapolis, 658

F.2d 494, 498 (7th Cir. 1981). It was

stated that:

- « « the trial judge must deter-

mine whether the part with the

burden of proof has produced suf-

ficient 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

£. 1973).

4la

While it might be argued that the trial

court could have been influenced in its

judgment by the defense of qualified immu-

nity, such an argument would not reverse

the trial court's decision but only

require a remand for a clarification of its

decision. In the normal orderly and

efficient administration of justice,

priority consideration should be given to

issues which will dispose of litigation

over issues which, if sustained, will

require remand and retrial. Otten v.

Stonewall Insurance Co., 538 F.2d 210, 213

(8th Cir. 1976). From this record, we feel

a remand is not necessary.

Lenard argues the sufficiency of the

evidence against the Village and requested

a reversal of the verdict and judgment, but

no post-trial motions, i.e., judgment

n.O.v. or motion for retrial, were made.

Such failure limits the relief available

from the appellate court to that of

42a

possibly ordering a new trial. Cone v.

West Virginia Pulp and Paper Co., 330 U.S.

212 (1947); 5A Moore's Federal Practice

450.12 (2d ed. 1981). Defendants Argento

and Sansone made several post-trial

motions, including a motion for new trial.

These motions were denied. From our review

of the record, we fail to find sufficient

evidence that would cause a reasonable man

to return a contrary verdict. Smith v.

J.C. Penney Co., 26) F.2d 218, 219 (7th

Cir. 1958). We sustain the Directed

Verdict for the Village of Melrose Park.

II. Damages

a. "Substantial"

As previously discussed, all the

defendants, the Village of Melrose Park,

Argento, Sansone, Zito and Culotta, were

found not guilty by the jury of the alleged

beating of Lenard. The jury also found the

Village of Melrose Park, Zito and Culotta

not guilty under Counts II and III. The

43a

jury did, however, find for Lenard against

Argento and Sansone on both Counts II and

III. The jury also found the two officers

liable for malicious prosecution.

When the trial court instructed the

jury on the "damage" portion of the ver-

dict, they were instructed that they could

award “substantial damages" for both con-

spiracies without proof of actual injury.

If the jury found malicious or wanton con-

duct in regard to the conspiracies, the

jury was instructed that they could award

punitive damages in addition to the award

of "substantial damages." If the jury

found that Lenard had sustained actual or

compensatory damages from the malicious

prosecution, the jury was instructed to

award such damages to Lenard. If Lenard

had not sustained any actual damages, they

were instructed to award a nominal sum.

They were also instructed that punitive

damages could be awarded if they found by a

44a

preponderance of the evidence "that the

acts and conduct of the defendants toward

the plaintiff were maliciously done." (R.

‘2382).

The trial court went on to further

explain the three types of damages upon

which they had been instructed. Actual

damages represented any direct out-of-

pocket expenses Lenard sustained because

of the defendants' acts and conduct. The

trial court viewed "substantial damages"

as a category presumed to flow from every

conspiracy to obstruct justice or depriva-

tion of equal protection. ’ It was seen as

7 "Substantial damages, as I have described in

these instructions, are those which are presumed

to flow fram every conspiracy to obstruct justice,

and every conspiracy to deprive plaintiff of equal

protection of the laws or of equal privilege or

immunity under the laws. It is for you to deter-

mine the amount of the substantial damages, as it

is for you to determine the amount of the actual

damages." (Tr. 2385).

45a

a category separate from actual damages or

punitive. This Court finds that it was

error to instruct the jury as to a separate

and distinct category of damages classi-

fied as "Substantial damages."

In Carey v. Piphus, 545 F.2d 30 (7th

Cir. 1976), rev'd 435 U.S. 247 (1977), the

Supreme Court reversed the position of

this court regarding the awarding of

damages to students who were suspended

from public elementary and _ secondary

schools without iain ws due process.

We had held that the students were entitled

to recover substantial non-punitive

damages in the absence of proof of actual

injury caused by the denial of procedural

due process. The Supreme Court held "that

substantial damages should be awarded only

to compensate actual injury or, in the case

of exemplary or punitive damages, to deter

Or punish malicious deprivations of

rights.” 435 U.S. at 266. Carey was

46a

limited to procedural due process viola-

tions rather than the substantive consti-

tutional violations of this case.

When the Court overruled the holding

in Carey, it refrained from overruling the

line of cases upon which this court had

based Carey. The Supreme Court held:

. . ethe elements and prerequi-

sites for recovery of damages

appropriate to compensate

injuries caused by the depriva-

tion of one constitutional right

are not necessarily appropriate

to compensate injuries caused by

the deprivation of another. AS

we have said, supra, at 258-259,

these issues must be considered

with reference to the nature of

the interests protected by the

particular constitutional right

in question.

435 U.S. at 264-65. As recently pointed

out in this court by Justice Stewart,

retired, sitting by designation in Owen v.

Lash, 682 F.2d 648 (7th Cir. 1982), several

courts have considered the question of

awarding compensatory damages for substan-

tive constitutional violations in the

absence of consequential injury. Several

47a

of the courts, under the circumstances of

their particular case and the nature of the

constitutional violations, found damages

could "be presumed where there is an

infringement of a substantive constitu-

tional right." Williams v. Trans World

Airlines, Inc., 660 F.2d 1267, 1272 (8th

Citas BPCL) o See also Owen v. Lash, 682

F.2d at 657-59. Examining the circum-

stances of this case and the substantive

constitutional issues, it was proper for

the jury to consider and award damages for

these violations in the absence of dis-

cernible consequential injuries.

There is no question that Lenard is

entitled to a damage award for a violation

of 42 U.S.C. §1985(3). Such a right to

damages is provided for within §1985(3).

This court, however, does not find that

there is a separate category of damages

known as "Substantial damages" which flow

from civil rights violations. While it is

48a

recognized that courts must- exercise

creativity in fashioning remedies for vio-

lations of constitutional rights, we are

mindful of the Supreme Court's instruction

in Carey that:

- « « the rules governing compen-

sation for injuries caused by the

deprivation of constitutional

rights should be tailored to the

interests protected by the parti-

cular right in question--just as

the common law rules of damages

themselves were defined by the

interests protected in the

various branches of tort law.

435 U.S. 247, 259 (1977). While the Court

in Carey made several references to "sub-

Stantial damages" or "substantial non-

punitive damages, "® it is our reading that

the word "substantial" was used as an

adjective modifying the noun "damages" and

not as a descriptive phrase alluding to a

category of damages. Classification of

damages as actual or compensatory, nominal

and punitive are terms of art which have a

substantive meaning in legal jurispru-

. See 435 U.S. at 252, 253, 254, 261, 266.

49a

dence. "Substantial" is an adjective

modifying damages and conveys no legal

meaning. Rather, it gives a quantitative

character to the damages.

We cannot but feel that the repeated

use of the phrase "substantial damages" by

the district court (11 times, plus inclu-

sion as a category in the verdict form) in

its instructions to the jury and the

instruction that such damages could be

awarded without proof of actual injury

greatly influenced this large verdict.

"Repetitious instructions which place

undue emphasis on matters favorable to

either side constitute reversible error."

Flentie v. American Community Stores,

Corp., 389 F.2d 80, 83 (8th Cir. 1968).

In light of the erroneous use of the term

"substantial" in the verdict form and the

instructions in keeping with that form, we

reverse and remand this case for retrial on

the issue of damages.

50a

b. Punitive

Additionally the award of $150,000 and

$75,000 in punitive damages against

Argento and Sansone, respectively, without

a showing as to which claim, the con-

Sspiracies or the malicious prosecution,

the award as assigned or apportioned

requires remand in this instance. Federal

law governs the right to punitive damages

in civil rights violations. Basista v.

Weir, 340 F.2d 74 (3d Cir. 1965). TO

warrant an award of punitive damages, it

must be demonstrated that "there was a

degree of willful and wanton disregard of

plaintiff's right not to suffer this sort

of discrimination." Seaton v. Sky Realty

Co., Inc., 491 F.2d 634, 638 (7th Cir.

1974). Because of our holding on the issue

of malicious prosecution, supra, and the

single sum award of punitive damages, we

cannot apportion the award among. the

5la

counts of the complaint. Punitive damages

may be awarded to punish a defendant for

his outrageous conduct but also to deter

the defendant and others from engaging in

the same or similar conduct. Gertz v.

Robert Welch, Inc., 418 U.S. 323, 350

(1974); see also City of Newport v. Fact

Concerts, Inc., 453 U.S. 247 (1981); W.

Prosser, Law of Torts, §2 at p.9 (4th ed.

1971). Damages should not go beyond deter-

rence and become a windfall.

c. Damage evidence that can be presented

Several issues were raised on appeal

regarding damages and evidence regarding

damages which we will consider in order to

guide the district court in the retrial.

The district court below held that no

evidence in the damage portion of the trial

could be introduced regarding the "beat-

ing" as the jury found no "actual" beating

had occurred. The district court

instructed Lenard's counsel that:

52a

THE COURT: That is not what the

Court is saying. I am saying any

evidence that flows from the

damages resulting from Mr.

Lenard being maliciously prose-

cuted or conspired against may

come in; but on the 1983 charge,

of having been beaten or the use

of excessive force and depriva-

tion of his constitutional

rights, that I am precluding.

The Court feels it has no

choice, in light of the jury's

verdict. If you feel I read the

jury's verdict incorrectly, then,

of course, you make the exception

you have and call for a mistrial.

But I feel there is no other

choice.

2 ¢ @

THE COURT: So the record is

clear, Mr. Bertucci, there can be

no reference to a cover-up of a

beating which I state for the

record the Court has concluded

that the verdict has been

returned that that proof has not

been established by a prepon-

derance of the evidence.

MR. BERTUCCI: What I want to

know, your Honor--

THE COURT: You are limited in

that, that is correct.

MR. BERTUCCI: But what can I

say the conspiracy was?

53a

THE COURT: Whatever conduct,

other than the beating, which was

alleged to have occurred in this

case you feel occurred, any con-

duct other than that, whether it

relates to the malicious prosecu-

tion or any other action which

violated the constitutional

rights of the plaintiff may be

addressed in your argument, and

you may ask _ for substantial

damages and punitive damages,

with regard to that.

But there cannot be any

reference to the beating. So

that the record is clear, I am

precluding that, so if you have

any comment on that, I certainly

would hear you.

(Tr. 2280, 2345-46). Counsel made offers

of proof of the physical injuries sus-

tained, the subsequent surgeries, the con-

sequential monetary losses, and the pain

and suffering caused by the incident. No

damage evidence went to the jury except the

arguments of counsel. ?

9 This was a bifurcated trial lasting over 5 1/2

weeks with the same jury determining liability as

well as damages.

54a

While the district court was correct

in holding that no evidence of damage from

an alleged "beating" could be presented to

the jury because of its prior decision, the

district court erroneously prevented the

presentation of any of the proffered evi-

dence of injuries, medical treatment and

losses caused by those injuries sustained

while in police custody as they relate to

the conspiracy counts. In other words, any

evidence of injuries proved incurred from

the time shortly after the accident to

Lenard's release to his family late that

evening should be admitted as they relate

to being sustained while in police cus-

tody. These injuries cannot be presented

Or argued, however, as being the result of

a beating but presented as_ injuries

incurred somehow while under police super-

vision and protection.

It has been recognized that prisoners

are entitled to protection from excessive

55a

,

use of force by police officers. Clark v.

Ziedonis, 513 F.2d 79 (7th Cir. 1975).

This court has held that where there is a

showing of deliberate deprivation of con-

Sstitutional rights while confined, a

prisoner is entitled to damages. Black v.

Brown, 513 F.2d 652 (7th Cir. 1975); Little

v. Walker, 552 F.2d 193, 197-98 (7th Cir.

1977). On reconsideration of the damages

On remand, evidence relating to the eye

injury and the shoulder injury, the cor-

rective surgeries performed, the costs and

monetary losses from these injuries and

the prognosis for recovery should be pre-

sented to the jury.

Damages may also be considered and

awarded for constitutional deprivations.

As we held in Hostrop v. Board of Junior

College District No. 515, 523 F.2d 569 (7th

Cir. 1975), cert. denied, 425 U.S. 963

(1976), the trial court should consider,

when making an award for constitutional

56a

violations, "the nature of the constitu-

tional deprivation and the magnitude of

the mental distress and _ humiliation

suffered by the plaintiff, as well as any

other injury caused as a result of being

deprived of federally protected

rights..." Id. at 580. As recently

pointed out in this court by Justice

Stewart in Owen v. Lash, Supra, several

courts "have awarded significant damages

to compensate for the deprivation of a con-

stitutional right despite the absence of

proof on consequential injury." 682 F.2d

at 658.

As ’1is court pointed out in Hostrop:

Although the amount of damages for

such an injury cannot be determined by

reference to any objective standard,

recovery of non-punitive damages for

deprivation of intangible rights for

which no pecuniary loss can be shown is

not without precedent. Courts have

traditionally assessed such damages

for tortious injury. Examples in

civil rights litigation include the

awarding of damages for the depriva-

tion of voting rights, for the abridg-

57a

ment of equal opportunities to hous-

ing, for illegal assets, and for vio-

lation of the right against unlawful

searches and seizures.

523 F.2d at 579 (cites omitted). See also

Seaton v. Sky Realty Co., Inc., 491 F.2d

634 (7th Cir. 1974); Corriz v. Naranjo, 667

F.2d 892 (10th Cir. 1982), appeal dis-

missed per S.Ct. Rule 53, 51 U.S.L.W. 3150

(Aug. 19, 1982).

Upon retrial for damages, Lenard

should be allowed to argue damages flowing

from the nature of the constitutional

deprivation, the mental distress, humili-

ation or any other injury, if any, caused

as the result of the violation of his con-

stitutional rights.

d. Duplicative Award

Argento and Sansone argue on appeal

that any damage award for a civil con-

spiracy would be a duplicative damage

award for the act which implemented the

conspiracy. They argue that the damages

58a

for the conspiracy. They argue that the

damages for the conspiracy counts cannot

represent the "beating" but must relate to

the conspiracy to prosecute Lenard. The

damages for the act of prosecution, they

contend, were compensated under the

instructions related to the malicious pro-

secution count and cannot be compensated

again under the conspiracy count.

However, the instructions for the con-

spiracy damages were not isolated to a par-

ticular event but rather related to the

deprivation of rights of "due course of

justice" and "equal protection under the

10 An award under §1985 would not be

law."

duplicative of the prosecution or the

beating but, in this case, go to the find-

ing of deprivation of civil rights while in

police custody. See Corriz v. Naranjo, 667

F.2d at 896-898. While courts have held

that an award of damages for a state tort

10 "Where a plaintiff has proven a conspiracy

(continued on next page)

59a

claim joined with a federal civil rights

action would be duplicative when there is

an adequate state tort remedy, Clapper v.

Flynn, 605 F.2d 519, 529 (10th Cir. 1979),

there are in this case, only strictly

federal civil rights claims. As pre-

viously indicated, §1985 provides damages

for "injury or deprivation." MThus, it is

possible under §1985 to award damages for

the act which effectuated the conspiracies

and for the conspiracy which caused the

deprivation. See Stringer v. Dilger, 313

F.2d 536 (10th Cir. 1963).

(continued)

to obstruct justice and a conspiracy to deprive

him of equal protection of the laws, or of equal

privileges and immunities under the law, he is

entitled to recover without proving any actual

injury, substantial damages." (Tr. 2381),

60a

In summary, upon remand for retrial on

damages, we direct that there is no cate-

gory of damages called "substantial," that

the evidence of bodily injury sustained by

Lenard during his police custody and the

related treatments, costs and prognosis

shall be considered as damages under §1985

(but they should not be couched as beating

injuries), and that any evidence of

injuries, i.e., mental distress or humil-

iation, sustained by Lenard as a result of

the deprivation of his federal protected

rights should be presented to the jury.

However, the awards should not be duplica-

tive of any other compensated injuries.

Because of our finding of probable cause

and reversal of the malicious prosecution

count, no damages under Count III shall be

considered on remand,

III. Miscellaneous

a. Omission of "beating" on the verdict form

6la

1964). See also Alloy International Co. v.

Hoover=-NSK Bearing Co., 635 F.2d 1222 (7th

Cir. 1980). In this instance, the trial

court adopted the phraseology of §1983 and

then proceeded to break down the elements

which Lenard had to prove by a prepon-

derance of the evidence. In doing so, the

charge read:

In order to prove his claim

that defendants Argento, Sansone,

Zito and Culotta, or some of

them, deprived him of any of his

rights, privileges or immunities

secured by the Constitution [sic]

and laws, the burden is upon the

plaintiff to establish by a pre-

ponderance of the evidence each

of the following propositions:

"One, that these defen-

dants, or some of them, know-

ingly beat, bruised and

wounded plaintiff about the

face, head and body = as

alleged.

"Two, that these defendants

or some of them then and

there acted under color of

some law of the State of

Illinois or some ordinance of

the Village of Melrose Park.

63a

Lenard argues that the omission of

"battery," "beating," or “excessive force"

in the verdict forms submitted to the jury

was confusing and misleading. He contends

that the general phrase regarding depriva-

tion of "his rights, privileges or immuni-

ties" failed to inform the jury that these

phrases referred to the excessive use of

force. He further contends that the jury

could have been confused because the ver-

dict form was captioned with the Village of

Melrose Park as well as the other named

police defendants when in fact the Village

was not charged under Count I of the com-

plaint.

In reviewing the verdict forms, we

must look at the instructions to the jury

which complement the forms. Instructions

should not be isolated in review but the

court should look at the total scheme.

Dreckman v. Flores, 331 F.2d 221 (7th Cir.

62a

"Three, that the acts and

conduct of these defendants,

Or some of them, deprived the

plaintiff of some of his

federal constitutional

rights, and

"Four, that the acts and

conduct of these defendants

Or some of them were the pro-

ximate cause of injuries and

consequent damage to- the

plaintiff."

(Tr. 2198-99). Thus, looking at’ the

instruction and the accompanying verdict

form, it is clear that the deprivation of

"privilege and immunities" went to the

alleged beating "of the face, head and

body" of Lenard. The exact wording of an

instruction is within the discretion of

the court and will not be overturned unless

there was an abuse of that discretion. See

Emery Vv. Northern Pacific Railroad

Company, 407 F.2d 109 (8th Cir. 1969). It

is clear from the instruction that the ver-

dict form related to the "beating."

While the verdict form was captioned

with the Village's name, the instruction

64a

Clearly indicated the named police defen-

dants. "(O]nly when there is a complete

absence of positive fact to support

conclusions reached (by the jury) does a

reversible error appear." Almendarez v.

Atchison, Topeka and Santa Fe Railway Co.,

426 F.2d 1095, 1099 (5th Cir. 1970), citing

Lavender v. Kurn, 327 U.S. 645, 653 (1946).

We find no prejudicial error in the form

caption or the omission of "beating" in the

verdict form itself.

b. Jury Instructions

The defendants Argento and Sansone

argue that the jury instruction regarding

the conspiracy to obstruct justice was

overly broad and led the jury to believe

that if the defendants were guilty of mali-

cious prosecution they would be similarly

guilty on the conspiracy charge. A similar

argument was made regarding the equal pro-

tection instruction. We cannot agree.

65a

An examination of the record clearly

indicates that the trial court properly

instructed the jury on the elements of the

conspiracy to obstruct justice and the

elements of the conspiracy to deprive

equal protection. These elements were

broken down numerically and relevant terms

were defined for the jury. The instruction

regarding the malicious prosecution

Clearly went to the initiation and prose-

cution of the state charges and not to any

civil rights deprivations.! As the trial

il "In order to prove his claim that defendants

Argento and Sansone, or one of them, maliciously

prosecuted him for the offenses of no valid dri-

ver's license, resisting arrest, unlawful use of

weapons, no firearm owner's identification card,

improper lane usage, driving under the influence

of alcohol and failure to reduce speed to avoid an

accident, or sane of them, the burden is upon the

plaintiff to establish by a preponderance of the

evidence each of the following propositions:

One, that a criminal proceeding was carmenced

against the plaintiff.

Two, that defendants Argento and Sansone, or one

of them, carmenced the criminal proceeding against

the plaintif*.

(continued on next page)

66a

court had done in the other Counts, it

enumerated the elements of the cause of

action which clearly delineated to the

jury that the malicious prosecution went

to the criminal charges and not to any

police misconduct. Inasmuch as the jury

was properly instructed as to the issues

before them, given an understanding of

those issues and charged with the duty to

determine those issues, we find no pre-

judicial error to Argento and Sansone. As

this court repeated in Alloy International

Co. v. Hoover-NSK Bearing Co.,:

‘(eont inued)

Three, that the plaintiff was found not guilty

of one or more of the charges.

Four, that a criminal proceeding was carmenced

by defendants Argento and Sansone, or one of them,

without probable cause.

Five, that defendants Argento and Sansone, or

one of them, acted with malice and,

Six, that the defendant was damaged by the

criminal proceeding." (Tr. 2209).

67a

The test, then, is not what mean-

ing the ingenuity of counsel can

at leisure attribute to’ the

instructions, but how and in what

sense, under the evidence before

them and the circumstances of the

trial, ordinary men acting as

jurors will understand the

instructions.

635 F.2d at 1228, (citations omitted).

Argento and Sansone contend that the

instructions are overly broad because any

misconduct by the defendants would create

liability for conspiracy. As previously

indicated, any act in the furtherance of or

implementation of the conspiracy agreement

creates the liability. Thus, if the jury

found an agreement between Argento and

Sansone and an act in the furtherance of

that agreement to hinder the due course of

justice or to dery equal protection under

the law, the civil conspiracy is trig-

gered. 2? It is within the dominion of the

12 "So where the evidence in the case shows

such a canmmon plan or arrangement between two or

(continued on next page)

68a

jury to decide upon the evidence what act

of the defendants supported the conspiracy

not the instructing court. This jury was

not set loose in a vague and cloudy field

of legal concepts as charged. It must be

pointed out, however, that since this

court has found probable cause to arrest

Lenard, the prosecution of those charges

was not malicious, and the conspiracy

count must fail.

In light of our finding of probable

cause to effect the arrest of Lenard and

reversal of the jury's finding on the

malicious prosecution, the challenged

instructions regarding the malicious pro-

(continued)

more persons, evidence as to an act done or state-

ment made by one such person is admissible against

all, provided that the act be knowingly done or

the statement be knowingly made during the contin-

uance of the carmon plan or arrangement, and in

furtherance of same intended object or purpose of

the conmon plan." (Tr. 2204).

69a

secution need not be discussed. Finally,

Argento and Sansone challenge the instruc-

tion of the trial court as to the

Thirteenth Amendment and prejudicial

introduction of "slavery" and "involuntary

servitude” in this case. The defendants

have, however, overlooked the fact that 42

U.S.C. §1981 et seq. has its constitu-

tional derivation from the Thirteenth and

Fourteenth Amendments. As the Supreme

Court held in Griffin:

By the Thirteenth Amendment,

we committed ourselves as a

Nation to the proposition that

the former slaves and their des-

cendants should be forever free,

To keep that promise, "Congress

has the power under the

Thirteenth Amendment rationally

to determine what are the badges

and the incidents of slavery, and

the authority to translate that

determination into effective leg-

islation." Jones v. Alfred H,.

Mayer Co., supra, at 440. We can

only conclude that Congress was

wholly within its powers under §2

of the Thirteenth Amendment in

Creating a statutory cause of

action for Negro citizens who

have been the victims of con-

70a

spiratorial, racially discrimina-

tory private action aimed at

depriving them of the _ basic

rights that the law secures to

all free men.

403 U.S. at 105.

Examining all the instructions as a

whole, we do not find the objected to

instructions overly broad, confusing or

prejudicial.

c. Motions in Limine

The trial court granted a Motion in

Limine barring the introduction of evi-

dence of a prior arrest and conviction of

Lenard on voluntary manslaughter on March

23, 1953 in Arkansas. He was sixteen years

old at the time, but there is no indication

on the judgment of conviction (Exhibit A at

R. 285) whether or not he was adjudicated

as a juvenile. Argento and Sansone contend

the granting of the Motion was prejudical

error as this conviction went to the issue

of Lenard's violent tendencies and anti-

7la

pathy to the law. It is contended that

Lenard presented himself as a lifetime law

abiding citizen and the defense was pre-

vented from impeaching his credibility

through the introduction of three prior

arrests and one conviction. +3 While

13 Lenard was arrested for premeditated murder

but pled guilty to voluntary manslaughter on March

23, 1953. He was apparently arrested in 1960 and

resisted arrest in July, 1968. (Offer of proof

Tr. 1648-49). Those arrests were not prosecuted.

It is unclear from the record, as several docu-

ments are missing, but there is passing reference

to a gambling conviction but it is not further

identified. The trial court granted Lenard's

Motion in Limine prohibiting reference to the

prior gambling conviction and the prior man-

Slaughter conviction for impeachment purposes.

(Tr. Vol. Ap. 7). The trial court did not, how-

ever, outline on the record the factors considered

consistent with this court's standard in United

States v. Mahone, 537 F.2d 922, 929 (7th Cir.),

cert. denied, 429 U.S. 1025 (1976).

72a

Argento and Sansone argue that this evi-

dence went to the issues in the malicious

prosecution count, it could have related

to the other counts as well.

Federal Rules of Evidence 60914 per-

14 Federal Rules of Evidence 609 provides:

(a) General rule. For the purpose of attack-

ing the credibility of a witness, evidence that

he has been convicted of a crime shall be admit-

ted if elicited fram him or established by pub-

lie record during cross-examination but only if

the crime (1) was punishable by death or

imprisonment in excess of one year under the law

under which he was convicted, and the court

determines that the probative value of admitting

this evidence outweighs its prejudicial effect

to the defendant, or (2) involved dishonesty or

false statement, regardless of the punishment.

(b) Time limit. Evidence of a conviction

under this rule is not admissible if a period of

more than ten years has elapsed since the date of

the conviction or of the release of the witness

fran the confinement imposed for that convic-

tion, whichever is the later date, unless the

court determines, in the interests of justice,

that the probative value of the conviction sup-

ported by specific facts and circumstances sub-

stantially outweighs its prejudicial effect.

However, evidence of a conviction more than 10

years old as calculated herein, is not admiss-

ible unless the proponent gives to the adverse

party sufficient advance written notice of

intent to use such evidence to provide the

adverse party with a fair opportunity to contest

the use of such evidence.

73a

mits the admission of evidence of the prior

criminal conviction of a witness to attack

his credibility if the probative value of

the evidence outweighs its prejudicial

effect. However, convictions more than

ten years old are inadmissible "unless the

court determines, in the interest of jus-

tice" that the probative value outweighs

the prejudicial effect. Id. In addition,

juvenile adjudications are similarly

inadmissible. In this instance, the con-

viction was twenty-four years old occurr-

ing when Lenard was a juvenile.

~ (eont inued)

* * *

(d) Juvenile adjudications. Evidence of

juvenile adjudications is generally not admiss-

ible under this rule. The court may, however,

in a criminal case allow evidence of a juvenile

adjudication of a witness other than the accused

if conviction of the offense would be admissible

to attack the credibility of an adult and the

court is satisfied that admission in evidence is

necessary for a fair determination of the issue

of guilt or innocence.

Federal Rules of Evidence 609.

74a

This court has always carefully con-

sidered the prejudicial impact of prior

convictions and has recommended a standard

for the trial courts to guide them in their

discretionary function. See, United

States v. Mahone, 537 F.2d 922 (7th Cir.),

cert. denied, 429 U.S. 1025 (1976). The

determination whether the evidence of a

prior conviction is more probative than

prejudicial is within the trial court's

discretion. The House Committee on the

Judiciary, when considering the proposed

Federal Rules of Evidence, recommended

that convictions older than ten years

15 The

should be totally inadmissible.

Senate's recommendation was that of admis-

sion of the conviction on only very rare

15 H.R. Rp. No. 650, 93rd Cong. Ist Sess.,

reprinted in, 1974 U.S. Code Cong. & Ad. News pp.

7051, 7085.

75a

16 The pre-

and exceptional circumstances.

sent rule is a version of the Senate

recommendation, The Sixth Circuit in

United States v. Sims, 588 F.2d 1145, 1150

(6th Cir. 1978) held that "609(b) creates,

in effect, a rebuttable presumption that

convictions over ten years old are more

prejudicial than helpful and should be

excluded." Lenard's conviction was suf-

ficiently remote in time, under possible

juvenile adjudication circumstances, and

unrelated to his truth telling capabil-

ities or the events in this action. It was

not error for the trial court to determine

that admission would be highly prejudicial

and not in the interest of justice.

Lenard contends the trial court erred

when it granted the Motion in Limine of

16 S. Rep. No. 1277, 93rd Cong. 2d Sess.,

reprinted in, 1974 U.S. Code Cong. & Ad. News pp.

7951, 7062.

76a

Sansone and Zito regarding their guilty

pleas to bribery charges and thirty day

suspensions which occurred in August,

1978.2?

It is argued the Village's treat-

ment of these officers on the bribery

charge supported the allegations of the

Village condoning police misconduct and

that such evidence is admissible under

Federal Rules of Evidence 404(b) , 28

17 On August 30, 1978, Sansone and Zito entered

guilty pleas to soliciting and accepting a $100.00

bribe on June 24, 1978.

18 Federal Rules of Evidence 404(b) provides:

(b) Other crimes, wrongs, or acts. Evidence

of other crimes, wrongs , or acts is not admiss-

ible to prove the character of a person in order

to show that he acted in conformity therewith.

It may, however, be admissible for other pur-

poses, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.

77a

Generally evidence of other criminal

activities is inadmissible unless the evi-

dence of the other crimes or misconduct is

relevant. It would be relevant if it bore

upon the intent, knowledge, or absence of

mistake or accident of the defendant.

United States v. Peskin, 527 F.2d 71, 84

(7th Cir. 1975), cert. denied, 429 U.S.

818 (1976). See also, United States v.

Jones, 438 F.2d 461, 465 (7th Cir. 1971);

United States v. Marine, 413 F.2d 214,

216-17 (7th Cir. 1969), cert. denied, 396

U.S. 1001 (1970). The admissibility of

other criminal conduct is within the dis-

cretion of the trial court. Glasser v.

United States, 315 U.S. 60 (1942); United

States v. Fierson, 4]9 F.2d 1020 (7th Cir.

1969); United States v. Graviec, 563 F.2d

313 (7th Cie. 1977).

The bribery admissions of Sansone and

zito do not relate to any charge against

78a

them in this civil action. The bribery and

suspensions do not demonstrate any intent

Or knowledge which correlates to any civil

rights deprivation or physical abuse.

While both charges might demonstrate

police misconduct, the admission of the

subsequent suspensions would have to be

weighed by the trial court for its pre-

judicial versus probative value. In addi-

tion, Lenard is not seeking to use the

evidence against Sansone and Zito but

against the Village to prove its intent to

condone misconduct. Thus, Lenard is not

seeking to use the evidence to show the

intent of Sansone and Zito to commit police

misconduct but rather to impose a com-

pletely different intent upon the Village.

The proposed use of this evidence is com-

pletely outside the exceptions of 404(b).

The suspensions are unrelated to any facts

at issue in this case and do not have "any

tendency to make the evidence of any fact

79a

that is of consequence to the determina-

tion of the action more probable or less

probable than it would be without the evi-

dence." Federal Rules of Evidence 401.

The trial court properly acted within its

discretion to deny the admission of the

suspensions,

Lenard also argues the trial court

erred when it granted the Motion in Limine

in respect to the police officer defen-

dants' assertion of their Fifth Amendment

privileges to internal investigators and

the Cook County Grand Jury investigating

the incident. (The officers did testify

two weeks later). Lenard argues that the

Village's failure to discipline the

officers for invocation of their Fifth

Amendment privilege was further evidence

of a Village cover-up or condoning of mis-

conduct. The Supreme Court held in Gardner

v. Broderick, 392 U.S. 273 (1968), how-

80a

ever, that a police officer cannot be dis-

ciplined for invocation of his Fifth

Amendment privilege nor his failure to

sign a waiver of immunity with respect to

any testimony when the officer is called

before a grand jury investigating criminal

conduct with which he may be involved.

Thus, the Village was prohibited from dis-

ciplining the officers under Gardner.

Failure to discipline could not then be

part of a cover-up. The failure of the

Village to reinterview the defendants for

its own internal investigation after their

waiver of privilege before the Grand Jury

fails to demonstrate an intention to

cover-up, especially when Sansone and Zito

were suspended a year and half later. The

trial court acted within its discretion in

granting the Motion.

8la

dad. Statements made by counsel

While this Court appreciates the advo-

cacy displayed by these attorneys on

behalf of their clients, there were times

during the course of reviewing the briefs

and records of this case when it wondered

whether these attorneys were in the same

courtroom hearing the same case. While

florid language and zealous advocacy dis-

play commitment to their respective

causes, exaggerations and personal attacks

do not factually present issues before an

appellate court.

Defendants Argento and Sansone contend

on appeal that several statements made by

Lenard's counsel, including statements

regarding religious affiliations and the

veracity of Sansone in his testimony,

amounted to reversible error. Personal

observations, evaluations and recommenda-

tions are not part of the role of trial

82a

counsel but in the context of all the

evidence and the clear cautionary instruc-

tions of the trial court regarding the

arguments of counsel, these statements do

not rise to the level of reversible error.

We find any error in statements made by

either counsel to be harmless error within

Fed. BB. Civ. 8. Gis Kotteakos v. United

States, 328 U.S. 750, 761-62 (1946). We do

congratulate the trial court for its very

fair, even-handed handling of this long

difficult case.

IV. Attorney Fees

The conclusion of the trial was far

from the conclusion of the issues of the

Lenard case on appeal. In October, 1980,

the trial court in a Memorandum Opinion (R.

281) ruled that each party had prevailed to

some extent and denied cross-motions by

the plaintiff and defendants for attorney

fees under the Civil Rights Attorneys Fees

83a

Awards Act of 1976, 42 U.S.C. §1988.29

Subsequent to that decision, this appel-

late court modified its prior ruling of

Roesel v. Joliet Wrought Washer Co., 596

F.2d 183 (7th Cir. 1979), in the cases of

Coop v. City of South Bend, 635 F.2d 652

(7th Cir. 1980) and Murphy v. Kolovitz, 635

F.2d 662 (7th Cir. 1981). As a result of

this modification, the trial court recon-

sidered the question of attorney's fees

and granted the plaintiff's motion regard-

19 42: U.S.C. §1988 provides:

. « « In any action or proceeding to enforce a

provision of sections 1981, 1982, 1983, 1985,

and 1986 of this title, title IX of Public Law

92-318, or title VI of the Civil Rights Act of

1964, the court, in its discretion, may allow

the prevailing party, other than the United

States, a reasonable attorney's fee as part of

the costs.

84a

20 The trial court denied Defen-

ing fees.

dants' Motion to Reconsider on May 29,

1981. On the same date the trial court

awarded to the plaintiff attorney's fees

in the amount of $180,500. The trial court

also awarded costs to the plaintiff.

Argento and Sansone made a Motion to Recon-

sider the Award of $180,500 in fees point-

ing out that the attorneys had entered into

fee agreements with Lenard limiting their

fees to 1/3 of the recovery at trial. The

trial court in its Memorandum Opinion

examined the case law of other circuits and

21

the terms of the 1981 fee agreement and

20 Memorandum Opinion dated January 30, 1981.

21

The January 21, 1981 Attorney's contract

signed by Bennie Lenard and Cecile Singer provided

in part:

I HEREBY accept the foregoing terms and condi-

tions and agree to make no charge for our ser-

vices unless and except to the extent that money

or property is recovered on such claims or

suits. I further agree to make no settlement

(continued on next page)

85a

found that plaintiff's counsel had limited

their fees to one-third of the judgment.

The court then modified the fee award to

$120,000. This Memorandum Opinion was

entered on June 19, 1981.

On June 26, 1981, the defendants filed

notice of appeal from all orders of the

district court related to fees and costs.

On June 29, 1981, the plaintiff filed in

the district court a Motion to Reconsider

the reduction of fees. This motion was

within the ten-day time requirements of

post-judgment motions. The court ordered

memorandums of the issue of fee reduction

and held oral arguments on the issue.

(cont inued)

without the consent of the above claimant. I

further agree that any money awarded as and for

attorneys fees under the Civil Rights Attorneys

Fees Award [sic] Act, for services rendered in

prosecution of the trial, appeal before the

. Seventh Circuit Court of Appeals, and the re-

trial (if necessary) of this cause shall be

applied and credited, up to and including, but

not to exceed the stated per centage [sic] of

the amount recovered on the claim (33 1/3% for

trial; 40% for trial and appeal; 50% for trial,

appeal, and retrial).

86a

After consideration of the memorandums and

arguments, the district court found the

disputed provision of the 1981 fee agree-

ment ambiguous. Since the court found the

contract terms ambiguous, Illinois case

law permitted the use of extrinsic evi-

dence to enable the court to reach a proper

interpretation. Considering the affida-

vits of Lenard and Attorney Singer, the

court held the provision was a credit pro-

vision and not a limit to attorney's fees.

The district court ordered the vacation of

the June 19 judgment and the reinstatement

of the award of $180,500 in attorney's fees

in a Memorandum Opinion of July 29, 1981.

On appeal, initially, Argento and

Sansone argue that the district court did

not have jurisdiction over Lenard's June

29 Motion to Reconsider because they had

already filed their appeal. In addition,

it is argued that Lenard was not the pre-

vailing party; that special circumstances

87a

require denial of fees; that the fees

should be limited to the contingent con-

tract; that the trial court did not limit

the fees to the successful claims; that

fees should not be awarded for the pendent

Claim of malicious prosecution; and that

costs should not have been awarded under

§1988.

As a result of this Court's decision

reversing the judgments under Counts III

and V of the Complaint, affirming the jury

verdict on Count I and remanding the case

for retrial of damages under Count II, the

issue regarding the final amount of attor-

ney's fees must also be remanded to the

trial court. In light of Judge Posner's

concerns over the “nest of Chinese boxes"

in civil rights litigation (Muscare v.

Quinn, 680 F.2d 42 (7th Cir. 1982)), we

will address some of the issues raised on

appeal.

The filing of a timely Motion for

appeal has the effect of transferring the

jurisdiction over the case from the dis-

trict court to that of the appellate court.

9 Moore's Federal Practice 9203.11 (1982);

United States v. Lafko, 520 F.2d 622 (3d

Cir. 1975). Under Fed.R.App.P. 4(a) (1)

the notice of appeal should be filed within

30 days from the entry of judgment or order

appealed from. However, the rule further

provides that:

(4) If a timely motion under

the Federal Rules of Civil Proce-

dure is filed in the district

court by any party: (i) for judg-

ment under Rule 50(b); (ii) under

Rule 52(b) to amend or make addi-

tional findings of fact, whether

Or not an alteration of the judg-

ment would be required if the

motion is granted; (iii) under

Rule 59 to alter or amend the jud-

gment; or (iv) under Rule 59 for a

new trial, the time for appeal

for all parties shall run from

the entry of the order denying a

new trial or granting or denying

any other such motion. A notice

of appeal filed before the dispo-

sition of any of the above

motions shall have no effect. A

new notice of appeal must be

filed within the prescribed time

measured from the entry of the

order disposing of the motion as

provided above. No additional

fees shall be required for such

filing.

Fed. R. App. P. 4(a) (4).

For the purposes of Rule 4(a), a motion

to reconsider has been held to qualify as a

Rule 59(e) motion. Richerson v. Jones, 572

F.2d 89, 93 (3d Cir. 1978); Jones vy.

Nelson, 484 F.2d 1165, 1167-68 (l0Oth Cir.

1973) ; 9 Moore's Federal Practice

9204.12[1], p. 4-67 (1982). Thus, a timely

motion to reconsider postpones the running

of the time for appeal. If the time to

file is postponed by a motion, the district

court must have jurisdiction to consider

the motion. As the rule states "[a] notice

of appeal filed before the granting or

denying of any of the above motions shall

have no effect. A new notice must be filed

» « «" Fed. R. App. P. 4(a) (4). We find

90a

that the district court had jurisdiction

to consider the Motion to Reconsider the

opinion of June 19, 1981, timely filed by

the plaintiff on June 29, 1981. The defen-

dants filed a notice of appeal from the

opinion reinstating the fees of $180,500

on August 31, 1981. Per stipulation, all

appeals were consolidated for hearing and

Oral argument. We will now consider the

appropriateness of attorney's fees and the

factors that should be considered by the

trial court in the awarding of fees.

The awarding of attorney's fees is

within the discretion of the trial court

but that discretion is a marrow one.

Dawson v. Patrick, 600 F.2d 70, 79 (7th

Cir. 1979). The fees should only be denied

when special circumstances would render an

award unjust. Id, The key to the award of

attorney's fees is the determination as to

who is the prevailing party. This Circuit

in Busche v. Burkee, 649 F.2d 509, 521 (7th

9la

Cir.), cert. denied, U.S. ’

102 S.Ct. 396 (1981), adopted the defini-

tion of the First Circuit in Nadeau vy.

Helgemoe, 581 F.2d 275, 278-9 (lst Cir.

1978) which stated:

plaintiffs may be considered

"prevailing parties" for attor-

ney's fees purposes if they suc-

ceed on any significant issue in

litigation which achieves some of

the benefit the parties sought in

bringing suit.

(emphasis added).

On the trial court level, Lenard

failed in the significant allegation of the

"beating" under §1983. Similarly, while

he was sustained in his charges under the

conspiracy counts, the jury found liabil-

ity only for Argento and Sansone and not

the other named defendants. On this

appeal, this Court has only affirmed the

findings of the jury on one of the con-

spiracy charges and reversed the findings

on the malicious prosecution and obstruc-

tion of justice. This Circuit has held

92a

that "a prevailing plaintiff should

receive fees almost as a matter of course."

Davis v. Murphy, 587 F.2d 362, 364 (7th

Cir. 1978). It cannot be said, however,

that Lenard has prevailed in the case as a

whole but rather he was partially success-

ful in his civil rights claims. As was

held in Muscare v. Quinn, 614 F.2d 577, 580

(7th Cir. 1980), attorney's fees should be

awarded only for the preparation and pre-

sentation of claims on which the plaintiff

has prevailed. "(T]he amount of attor-

ney's fees they receive [prevailing plain-

tiff] should be based on the work performed

on the issues in which they were success-

ful." Nadeau v. Helgemoe, 581 F.2d at 279;

Busche vy. Burkee, 649 F.wd at 522. See

also Coop yv. City of South Bend, supra;

Murphy v. Kolovitz, supra; Harrington v.

DeVito, 656 F.2d 264 (7th Cir. 1981), cert.

denied, U.S. » ava B.Ct..a6aa

(1982). On remand the trial court should

93a

carefully review the time sheets on the

successful claim of Count II in light of

the Waters factors adopted in Muscare vy.

Quinn, 614 F.2d at 579. See also Busche v.

Burkee, 649 F.2d at 522.

The defendants argue that, even if

Lenard did prevail, fees should be denied

because of the special circumstances of the

size of the damage award, the contingent

attorney contract and the financial posi-

tion of the defendants. The amount of the

damage award, large or small, is not a cir-

cumstance to be considered in the awarding

of fees. Coop v. City of South Bend, 635

F.2d at 654. The purpose of the Attorneys

Fees Awards Act was to effectuate and

assist the private citizen in the enforce-

ment of the Civil Rights Act. (See the

legislative history, S.Rep. No. 1011, 94th

Cong., 2d Sess., reprinted in 1976 U.S.

Code Cong. & Ad. News 5908-5914). We do

not view the size of any damage award of

94a

these attorney's fees. But see Chrapliwy

v. Uniroyal, Inc., 670 F.2d 760 (7th Cir.),

petition for cert. filed, 51 U.S.L.W. 3055

(U.S. May 19, 1982) (No. 81-2135); Mirabel

v. General Motors Acceptance Corp., 576

FP.24 729 (7th Cir.), cert. denied, 439

U.S. 1039 (1978). The trial court may con-

sider as a factor the contingent fee con-

tract, but it is not to be an automatic

limitation on the attorney list fee award.

See Sanchez v. Schwartz, 688 F.2d 503 (7th

Cir. 1982); Strama v. Peterson, 689 F.2d

661 (7th Cir. 1982). See also Sargeant v.

Sharp, 579 F.2d 645 (lst Cir. 1978). Addi-

tionally, while we recognize that these

defendants are two young police officers,

the ability to pay a fee award has been

held not to be a special circumstance that

would bar an award. Entertainment

Concepts, Inc. v. Maciejewski, 631 F.2d

497 (7th Cir.), cert. denied, 450 U.S. 919

(1980). We are aware that currently the

question of the insurance company's liab-

ility for the damage award is being liti-

gated in the magistrate's court. We do not

express any opinion regarding amount of

damages, fees or costs to affect those pro-

ceedings.

As Chief Judge Cummings recently wrote

in Sanchez v. Schwartz, supra, a contin-

gent fee contract should not serve "as an

automatic ceiling on the amount of a statu-

tory award." Slip op. at 4. See also

Furtado v. Bishop, 635 F.2d 915, 920 (lst

Cir. 1980) .2 The trial court properly

22 But_see Cooper v. Singer, 689 F.2d 929 (10th

Cir. 1982). The 10th Circuit Cooper decision

holds the amount of fees under a contingent con-

tract to be the maximum allowable amount to be

awarded under §1988. This is contrary to this

Circuit's holding in Sanchez v. Schwartz, supra,

wherein we declined to hold a contingent fee con-

tract as an autaratic ceiling on an award and con-

cluded that any such holding would be contrary to

the legislative history. 688 F.2d at 505. See

Judge Holloway's dissent in Cooper.

96a

reconsidered the disputed provision of the

1981 fee agreement. It is the function of

the courts to seek the proper interpreta-

tion of a contract which reflects the in-

tentions of the parties. Stanley v.

Chastak, 34 I11.App.2d 220, 180 N.E.2d

512, 520 (2d Dist. 1962); Greene v. Gust,

26 I1l.App.2d 2, 167 N.E.2d 438, 441 (lst

Dist. 1970); 4 S.Williston, A Treatise on

the Law of Contracts §601 (3d ed. 1961).

It is clear from the contract, the memoran-

dum in Support of the Motion to Reconsider

and the affidavits attached thereof that

it was the intention of Lenard and his

attorneys that any award under §1988 would

be credited to any fees owing under the

contingent contract. The excess attor-

ney's fee award, if any, would go the

attorneys. We cannot express or confirm

the final amount of the attorney's fees

23 See fn. 21, infra.

97a

because the trial court must reexamine the

award and limit the fees to the prevailing

issue.

The defendants contend that the trial

court improperly awarded costs’ under

§1988. They base this contention upon the

fact that the court reversed its stand

regarding costs after it reconsidered the

attorney's fees issue in January, 1981.

Costs are allowable under §1988.

Northcross vy. Board of Education of

Memphis City Schools, 611 F.2d 624, 642

(6th Cir. 1979), cert. denied, 447 U.S. 911

(1980); Konezak vy. Tyrrell, 603 F.2d 13,

18-19 (7th Cir. 1979), cert. denied, 444

U.S. 1016 (1980). Costs are also allowable

under Fed.R.Civ.P. 54(d) and 28 U.S.C.

§1920. These costs are awarded to the pre-

vailing party. Busche v. Burkee, 649 F.2d

at 522. It must be remembered that up to

January, 1981, the trial court regarded

this case a draw. It was only after the

98a

Clarification of "prevailing" in civil

rights cases that the trial court awarded

costs. While the court did not indicate,

in its Order awarding costs, the statutory

basis for the award, we believe that such

costs are allowable under §1988, 54(d) and

§1920. Deposition costs are allowable

within the discretion of the trial court,

Bailey v. Meister Brau, Inc., 535 F.2d 982,

996 (7th Cir. 1976), as are copying costs,

SCA Services, Inc. vy. Lucky Stores, 599

F.2d 178, 180 (7th Cir. 1979). We find no

abuse of discretion in the trial court

regarding the costs.

Since Lenard was successful’ in pre-

vailing on the issue of conspiracy to

deprive equal protection, on appeal, the

trial court should determine the reason-

able fees on this issue on appeal keeping

in mind the totality of the case. See

Muscare v. Quinn, 680 F.2d 42, supra. See

also, Hanrahan v. Hampton, 446 U.S. 754

99a

(1980).

V. Conclusion

For all the above reasons we:

he

2.

Affirm the jury verdict as to Count I;

Affirm the jury verdict as to

liability under Count II but reverse

and remand for retrial as to damages

under Count II as to defendants

Argento and Sansone;

Reverse the jury verdict as to Count

III as to defendants Argento = and

Sansone;

Reverse the jury verdict as to Count V

as to defendants Argento and Sansone;

Affirm the jury verdicts as to Zito and

Culotta;

Affirm the Directed Verdict as to the

Village of Melrose Park;

Reverse the District Court's award of

$180,500 in attorney's fees and remand

for recalculation in light of this

opinion;

100a

Remand to the District Court for

determination of attorney's fees on

appeal for those issues on_ which

Lenard prevailed in this court.

Circuit Rule 18 shall not apply.

AFFIRMED in part, REVERSED in part and

REMANDED.

A true Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Seventh Circuit

10la

Opinion by Judge Grant

Judgment -- Oral Argument

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

February 1, 1983

Before

Hon. Wilbur F. Pell, Jr., Circuit Judge

Hon. Richard D. Cudahy, Circuit Judge

Hon. Robert A. Grant, Senior District

Judge*

Nos. 80-2602, 80-2666, 81-2036, 81-2434

Bennie Lenard, ) Appeals from

Plaintiff-Appellee, ) the United

Cross-Appellant, ) States District

) for the Northern

) District of

) Illinois,Eastern

vs. ) Division.

Robert Argento and ) No. 77-C-1208

Joseph Sansone, ) Judges Joel

Defendants-Appellants, ) M. Flaum and

) Marvin E. Aspen

vs. )

Village of Meirose Park,)

a municipal corp- )

Oration, et al., )

Defendants-Appellees. )

lb

This cause was heard on the record from

the United States District Court for the

Northern District of JIllinois, Eastern

Division, and was argued by counsel.

On consideration whereof, ee

ORDERED AND ADJUDGED by this Court that the

judgment of the said District Court in this

cause appealed from be, and the same is

hereby, AFFIRMED in part, REVERSED in

part, and REMANDED, in accordance with the

opinion of this Court filed this date.

Costs on appeal awarded to plaintiff

Lenard, against defendants Argento and

Sansone.

The Honorable Robert A. Grant, Senior District

Judge of the Northern District of Indiana, sitting

by designation.

2b

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

March 10, 1983

Before

Hon. Wilbur F. Pell, Jr., Circuit Judge

Hon. Richard D. Cudahy, Circuit Judge

Hon. RobertA.Grant, Senior District Judge*

Bennie Lenard,

Plaintiff-Appellee,

Cross-Appellant, Appeal from

the United

States District

Court for the

Northern District

of Illinois,

Eastern Division

No. 77 C 1208

Joel M. Flaum,

Judge

Nos. 80-2602, 80-2666

81-2036, 81-2434

vs.

Robert Argento & Joseph

Sansone, Defendants-

Appellants,

vs.

Village of Melrose

Park, Defendant-

Appellee.

me eee ee ee ee ee

. Honorable Robert A. Grant, Senior District Judge

of the United States District Court for the Northern

District of Indiana, sitting by designation.

3b

On consideration of the petition

for rehearing filed in the above-entitled

cause by defendants-appellants, Robert

Argento and Joseph Sansone, all of the

judges on the original panel having voted

to deny the same,

IT IS HEREBY ORDERED that the aforesaid

petition for rehearing be, and the same

is hereby, DENIED.

4b

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

March 18, 1983

Before

Hon. Wilbur F. Pell, Jr., Circuit Judge

Nos. 80-2602, 80-2666, )

81-2036 and 81-2434) Appeals from

) the United

) States District

Bennie Lenard, ) Court for the

Plaintiff-Appellee, ) Northern District

Cross~Appellant ) of Illinois,

vs. ) Eastern Division

Robert Argento, Joseph ) No.77 C 1208

Sansone and Village ) Judge Joel

of Melrose Park, ) M. Flaum

a municipal corpora- )

tion, et al., )

Defendants-Appellants, )

Cross-Appellees

On consideration of the "MOTION TO

STAY ISSUANCE OF MANDATE" filed herein

on March 16, 1983, by counsel for the

defendants-appellants, cross-appellees,

IT IS ORDERED that said Motion is

GRANTED to the extent that the mandate

of this court is hereby stayed to and

5b

including April 18, 1983, without prejudice

to the reapplication for a continuance.

6b

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

vs. 77 C 1208

Robert Argento and

Joseph Sansone,

Defendants.

eee eee ee ee ee

MEMORANDUM OPINION

Joel M. Flaum, District Judge:

This matter comes before the court

on plaintiff's motion to reconsider the

order reducing attorneys' fees. For

the reasons set forth below, the motion

is granted.

On June 19, 1981 the court reduced

the attorneys' fee award to plaintiff

from $180,500 to $120,000. This reduction

was based upon the following provision

in a fee agreement between plaintiff

and his attorneys dated January 21, 1981

(the "1981 fee agreement"):

le

I further agree that any money

awarded as and for attorneys

fees under the Civil Rights

Attorneys Fees Award Act, for

services rendered in prosecution

of the trial, appeal before

the Seventh Circuit Court of

Appeals, and the retrial (if

necessary) of this cause shall

be applied and credited, up

to and including, but not to

exceed the stated per centage

of the amount recovered on the

Claim (33-1/3% for trial; 40%

for trial and appeal; 50% for

trial, appeal, and retrial).

Plaintiff now asks the court to reconsider

the reduction of the attorneys' fee award .

to $120,000.

After consideration of the memoranda

in support of and in opposition to this

motion for reconsideration and the arguments

made by counsel for both plaintiff and

defendants Argento and Sansone, the court

has concluded that the above-quoted provision

of the 1981 fee agreement is ambiguous.

If a written contract is so ambiguous

in its terms that the contractual intentions

of the parties cannot be understood from

2c

a mere inspection of the instrument, ex-

trinsic evidence may be received to enable

the court to make a proper interpretation

of the instrument. Stanley v. Chastek, 34

Ill.App.2d 220, 180 N.E.2d 512, 520 (2d

Dist. 1962); Greene v. Gust, 26 I11.App.2d

2, N.E.2d 438, 441 (lst Dist. 1970). Here

the affidavits of plaintiff and Cecile

Singer indicate that the parties of the

1981 fee agreement intended, at the time

the 1981 fee agreement was entered into,

the above-quoted provision to be merely a

credit provision and not a provision limi-

ting the amount of fees which plaintiff's

attorneys would receive. Therefore, that

part of the court's opinion dated June 19,

1981 reducing the attorneys' fee award to

plaintiff to $120,000 is vacated and the

attorneys' fees award in the sum of

$180,500 is reinstated.

3c

Accordingly, plaintiff's motion to re-

consider the order reducing attorneys'

fees is granted.

It is so ordered.

Joel M. Flaum

United States District

Judge

Dated: July 29, 1981

4c

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

Vv. 77 C 1208

Robert Argento and

)

)

)

)

)

)

)

Joseph Sansone, )

)

)

Defendants.

MEMORANDUM OPINION

Joel M. Flaum, District Judge:

This matter comes before the court on

Plaintiff's motion for an award of attor-

ney's fees pursuant to 42 U.S.C.§1988. For

the reasons set forth below, plaintiff is

awarded attorneys' fees in the sum of

$180,500.00.

Plaintiff has asked for fees of $100 to

$150 per hour for attorneys Cecile Singer

("Singer"), Edward T. Stein ("Stein"), Val

R. Klink ("Klink") and Donald T. Bertucci

("Bertucci”) and $85 per hour for attorney

5c

Mary Rita Luecke ("Luecke"). These fees

are requested for 1166.8 hours of Singer's

time, for 640.2 hours of Stein's time,

394.3 hours of Bertucci's time, 151.5

hours of Klink's time and 36.5 hours of

Luecke's time.

The court carefully has reviewed the

time sheets attached to each attorney's

affidavit. These time sheets indicate

that duplication of time occurred when

such was inappropriate / and that time

spent on unsuccessful claims still is in-

VV For example, at several depositions more than one

of plaintiff's atterneys were present and at trial

three attorneys were present.

6c

cluded. 2/ In addition to hours’ spent

times billing rate, the factors to be con-

sidered in determining the reasonableness

of attorneys' fees are the following:

2/ For example, plaintiff has not omitted time spent

on research relating to unsuccessful claims and on

drafting of the canplaint and amendments thereto

which alleged unsuccessful claims. Attorneys' fees

should be awarded under section 1988 only for pre-

paration and presentation of the claims on which a

plaintiff is determined to have prevailed. Busche

v. Burkee, Nos. 80-1248 and 80-1345, at 21 (7th

Cir. May 21, 1981).

7c

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

The time and labor required,

the novelty and difficulty of

the questions involved, and

the skill requisite to per-

form the legal service pro-

perly.

The likelihood, if apparent

to the client, that’ the

acceptance of the particular

employment: will preclude

other employment by the law-

yer.

The fee customarily charged

in the locality for similar

legal services.

The amount involved and the

results obtained.

The time limitations imposed

by the client or by the the

circumstances.

The nature and length of the

professional relationship

with the client.

The experience, reputation,

and ability of the lawyer or

lawyers performing the ser-

vices.

Whether the fee is fixed or

contingent. Muscare Vv.

8c

Quinn, 614 F.2d 577, 579 (7th

Cir. 1980).

After taking all the above factors

into consideration, the court concludes:

(1) that fees of $100 per hour for Klink

and Bertucci, of $90 per hour for Stein, of

$80 per hour for Singer and of $50 per hour

for Luecke, are reasonable; and (2) that

the hours for which each attorney may be

compensated are as follows: 1,000 hours

for Singer, 600 hours for Stein, 350 hours

for Bertucci, 100 hours for Klink 3/ and

3/ The administrator of Klink's estate also has

asked the court to award fees for 29 hours of esti-

mated time. Since the court has no idea how these

estimates were arrived at, it is unable to consider

this time.

9c

30 hours for Luecke. Therefore, the fee

award is calculated as follows:

Bertucci 350 hrs.x 100/hr= $ 35,000

Klink 100 hrs x $100/hr= $ 10,000

Stein 600 hrs x $90/hr= $ 54,000

Singer 1000 hrs x $80/hr= $ 80,000

Luecke 30 hrs x $50/hr= $ 1,500

Total $180,500

Accordingly, plaintiff is awarded

attorneys' fees in the sum of $180,500.

It is so ordered.

Joel M, Flaum

United States District

Judge

Dated: May 29, 1981

10c

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

Vv.

)

)

}

Village of Melrose Park, a )

municipal corporation, )

Robert Argento, Joseph )

Sansone, George Zito, Bruce )

Culotta, John Doe, and )

others not presently known )

to the Plaintiff, indivi- )

dually and as Police )

Officers of the Police De- )

partment of the Village of )

Melrose Park, Westland Com- )

munity Hospital, an )

Illinois corporation, D.T. )

Mehrpuyan and Andrea Dreyer,)

)

)

Defendants.

JUDGMENT

Joel M. Flaum, District Judge:

This action came on for trial before

the court and a jury, and the issues having

been duly tried and the jury having duly

rendered its verdicts,

IT IS HEREBY ORDERED AND ADJUDGED that

judgment is hereby entered in favor of

plaintiff and against defendants Argento

lle

77 C 1208

and Sansone as to plaintiff's claim that a

conspiracy was entered into for the pur-

pose of impeding, hindering, obstructing,

or defeating, in any manner, the due course

of justice;

That judgment is hereby entered in

favor of plaintiff and against defendants

Argento and Sansone as to plaintiff's

Claim that a conspiracy was entered into

for the purpose of depriving him of the

equal protection of the laws or of equal

privileges and immunities under the law;

That judgment is hereby entered in

favor of plaintiff and against defendants

Argento and Sansone as to plaintiff's

Claim that he was maliciously prosecuted;

That judgment is hereby entered in

favor of defendants Argento, Sansone,

Culotta, Zito and Village of Melrose Park

and against plaintiff as to his claim that

he was deprived of any of his rights,

12¢c

privileges or immunities secured by the

Constitution and laws;

That judgment is hereby entered in

favor of defendants Culotto, Zito and

Village of Melrose Park and againt plain-

tiff as to his claim that a conspiracy was

entered into for the purpose of impeding,

hindering, obstructing or defeating, in

any manner, the due course of justice;

That judgment is hereby entered in

favor of defendants Culotta, Zito and

Village of Melrose Park and against plain-

tiff as to his claim that a conspiracy was

entered into for the purpose of depriving

him of equal protection of the laws or of

equal privileges and immunities under the

law;

That plaintiff recover of defendants

Argento and Sansone as actual or compen-

satory damages the sum of $10,000.00, with

interest thereon at the rate of nine per-

l3c

cent per annum;

That plaintiff recover of defendants

Argento and Sansone as substantial damages

the sum of $125,000.00, with interest

thereon at the rate of nine percent per

annum;

That plaintiff recover of defendant

Argento as punitive and exemplary damages

the sum of $150,000.00, with interest

thereon at the rate of nine percent per

annum; and

That plaintiff recover of defendant

Sansone as punitive and exemplary damages

the sum of $75,000.00, with interest

thereon at the rate of nine percent per

annum.

Joel M. Flaum

nite ates stric

Judge

Dated: 3/19/80

l4c

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

Vv. 77 C 1208

Village of Melrose Park, a

municipal corporation;

Robert Argento, Joseph

Sansone, George Zito, and

Bruce Culotta,

ee ee ee ee ee ee ee ee

Defendants.

VERDICT

We, the Jury, find for the following

Defendant(s): Village of Melrose Park,

Robert Argento, Joseph Sansone, George

Zito, Bruce Culotta and against the Plain-

tiff as to his claim that he was deprived

of any of his rights, privileges or immuni-

ties secured by the Constitution and laws.

FOREPERSON

1d

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

v. 77 C 1208

Village of Melrose Park, a

municipal corporation;

Robert Argento, Joseph

Sansone, George Zito, and

Bruce Culotta,

me ee ee ee ee ee

Defendants.

VERDICT

We, the Jury, find for the following

Defendant(s): Village of Melrose Park,

George Zito and Bruce Culotta and against

the Plaintiff as to his claim that a con-

spiracy was entered into for the purpose of

depriving him of equal protection of the

laws or of equal privileges and immunities

under the law.

FOREPERSON

2d

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

V. 77 C 1208

)

)

)

)

‘

Village of Melrose Park, a )

municipal corporation; )

Robert Argento, Joseph )

Sansone, George Zito, and )

Bruce Culotta, )

)

)

Defendants.

VERDICT

We, the Jury, find for the Plaintiff

and against the following Defendant(s):

Robert Argento and Joseph Sansone as to

Plaintiff's claim that a conspiracy was

entered into for the purpose of depriving

him of the equal protection of the laws or

of equal privileges and immunities under

the law.

FOREPERSON

3d

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

Vv. 77 C 1208

Village of Melrose Park, a

municipal corporation;

Robert Argento, Joseph

Sansone, George Zito, and

Bruce Culotta,

Defendants.

meme eee ee ee ee ee ee

VERO. CF

We, the Jury, find for the following

Defendant(s): Village of Melrose Park,

George Zito and Bruce Cullotta and against

the Plaintiff as to his claim that a con-

spiracy was entered into for the purpose of

impeding, hindering, obstructing or de-

feating, in any manner, the due course of

justice.

FOREPERSON

4d

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

Vv. 77 C 1208

Village of Melrose Park, a

municipal corporation;

Robert Argento, Joseph

Sansone, George Zito, and

Bruce Culotta,

i

Defendants.

VERDICT

We, the Jury, find for the Plaintiff

and against the following Defendant(s):

Robert Argento and Joseph Sansone as

to Plaintiff's claim that a conspiracy

was entered into for the purpose of impeding,

hindering, obstructing, or defeating,

in any manner, the due course of justice.

FOREPERSON

5d

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

Vv. 77 C 1208

Village of Melrose Park, a

municipal corporation;

Robert Argento, Joseph

Sansone, George Zito, and

Bruce Culotta,

me meee ee eee ee ee

Defendants.

VERDICT

We, the Jury, find for the Plaintiff

and against the following Defen-

dant(s): Robert Argento and Joseph Sansone

as to Plaintiff's claim that he was mal-

iciously prosecuted.

FOREPERSON

6d

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Bennie Lenard,

Plaintiff,

v. 77 C 1208

Robert Argento and

)

)

)

)

)

)

Joseph Sansone, )

)

)

Defendants.

VERDTICT?®

We, the Jury, assess the plaintiff's

actual or compensatory damages in the sum

of $10,000.00.

We, the Jury, award the plaintiff sub-

stantial damages in the sum of

$125,000.00.

We, the Jury, award the plaintiff pun-

itive and exemplary damages against defen-

dant Argento in the sum of $150,000.00.

We, the Jury, award the plaintiff pun-

itive and exemplary damages against defen-

74

dant Sansone in the sum of $75,000.00.

FOREPERSON

8d

TEXT OF CONSTITUTIONAL PROVISION,

STATUTES AND RULES

Amendment XIV To The

United States Constitution

Section l. All persons born or nat-

uralized in the United States, and subject

to the jurisdiction thereof, are citizens

of the United States and of the State

wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State de-

prive any person of life, liberty, or pro-

perty, without due process of law; nor deny

to any person within its jurisdiction the

equal protection of the laws.

x *

Section 5. The Congress shall have

power to enforce, by appropriate legisla-

tion, the provisions of this article.

le

42 U.S.C. §1983

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the

District of Columbia, subjects, or causes

to be subjected, any citizen of the United

States or other person within the juris-

diction thereof to the deprivation of any

rights, privileges, or immunities secured

by the Constitution and laws, shall be

liable to the party injured in an action at

law, suit in equity, or other proper pro-

ceeding for redress. For the purposes of

this section, any Act of Congress applic-

able exclusively to the District of

Columbia shall be considered to be a

statute of the District of Columbia.

42 U.S.C. §1985(2)and (3)

(2) If two or more persons in any

State or Territory conspire to deter, by

force, intimidation, or threat, any party

2e

or witness in any court of the United

States from attending such court, or from

testifying to any matter pending therein,

freely, fully, and truthfully, or _ to

injure such party or witness in his person

Or property on account of his having so

attended or testified, or to influence the

verdict, presentment, or indictment of any

grand or petit juror in any such court, or

to injure such juror in his person or pro-

perty on account of any verdict, present-

ment, or indictment lawfully assented to

by him, or of his being or having been such

juror; or if two or more persons conspire

for the purpose of impeding, hindering,

obstructing, or defeating, in any manner,

the due course of justice in any State or

Territory, with intent to deny to any

citizen the equal protection of the laws,

or to injure him or his property for law-

fully enforcing, or attempting to enforce,

3e

the right of any person, or class of per-

sons, to the equal protection of the laws;

(3) If two or more persons in any

State or Territory conspire or go in dis-

guise on the highway or on the premises of

another, for the purpose of depriving,

either directly or indirectly, any person

or class of persons of the equal protection

of the laws, or of equal privileges and im-

munities under the laws; or for the purpose

of preventing or hindering the constituted

authorities of any State or Territory from

giving or securing to all persons within

such State or Territory the equal protec-

tion of the laws; or if two or more persons

conspire to prevent by force, intimida-

tion, or threat, any citizen who is law-

fully entitled to vote, from giving his

support or advocacy in a legal manner,

toward or in favor of the election of any

lawfully qualified person as an elector

4e

for President or Vice President, or as a

Member of Congress of the United States; or

to injure any citizen in person or property

on account of su

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