Popham v. City of Kennesaw

820 F.2d 1570
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 15, 1987
DocketNos. 85-8986, 86-8355
StatusPublished
Cited by130 cases

This text of 820 F.2d 1570 (Popham v. City of Kennesaw) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Popham v. City of Kennesaw, 820 F.2d 1570 (11th Cir. 1987).

Opinion

JOHNSON, Circuit Judge:

I

BACKGROUND

These appeals arise out of the arrest of Peter Popham at a candidate’s forum in Kennesaw, Georgia, in September 1982. During the midst of the campaign season for City Council, the Kennesaw Jaycees and the Kennesaw Business Association conducted an open “Meet the Candidates” forum. Popham attended that forum as a member of the public. During the forum, Darvin Purdy, the Mayor of Kennesaw, presented to the candidates for their signatures a waiver permitting the votes cast in the upcoming election to be tallied in the Council’s chambers instead of at the polling place. At that point Popham obtained permission to speak from the forum moderator.

Popham had run against Purdy for may- or the previous year. After losing, Pop-ham had unsuccessfully challenged the election in state court. One of the grounds of his complaint was that voting officials had removed the ballot boxes from the polling place prior to counting the votes. Thus, when Purdy offered the waiver to the candidates, Popham challenged the legality of removing the ballot boxes and soon began mentioning the improprieties that he felt had occurred in his race against Purdy. The moderator then ruled Popham out of order because he was discussing matters outside the forum’s agenda. Despite the moderator’s efforts to gavel him down, Popham continued speaking, raising his voice over the gavelling and the increasingly fractious audience.

The details of what happened next are disputed. According to Popham, Robert Ruble, the Kennesaw Chief of Police, rushed across the room and immediately placed him under arrest. When Ruble reached for him, Popham pulled his arm away. Ruble then shoved him onto the floor while Dwaine Wilson, another police officer, tackled him from behind. Once Popham was on the floor, Ruble immediately began choking him and kneeing him in the groin. At the same time, Wilson and two other police officers — Mike Sainé and Kenneth Carter — descended on him. Sainé yanked on his legs while Wilson and Carter bent back his wrists. Popham contends that he did not fight back. Finally he was handcuffed and taken to the police station.

The defendants recount the incident differently. They contend that Ruble asked Popham to be seated. When Popham continued to talk, Ruble warned him that, if he continued to speak, he would be arrested. Nonetheless, Popham persisted in speaking, so Ruble informed him that he was under arrest and would have to leave the room. When Ruble placed his hand on Popham’s arm in order to escort him out of the room, Popham yanked his arm back and then struck Ruble in the face. Ruble then reached for Popham again, but the two lost their balance and fell onto the floor. Once on the floor, Popham placed his legs in a scissor lock around Ruble’s waist and began thrashing about with his arms. Wilson and Carter rushed to place handcuffs on Popham while Sainé tried to unlock Popham’s legs. While flailing his arms about, Popham struck Wilson in the eye. Meanwhile, as Ruble pushed on Pop-[1574]*1574ham to keep him on the floor, Popham began to bite one of Ruble’s fingers. Ruble used his free hand to squeeze Popham’s throat so that Popham would release his finger. Ruble denies ever kneeing Popham in the groin.

Popham was charged with disturbing the peace, resisting arrest, and battery but was acquitted on all charges. Popham then filed suit against Ruble, Wilson, Carter, Saine, and the City of Kennesaw under 42 U.S.C.A. §§ 1983, 1985,1986, and 1988; the First, Fourth, Fifth, Eighth, and Fourteenth Amendments; and state tort law. Popham argued that the police officers were liable to him for violating his First Amendment rights, for false arrest, for the use of excessive force in making the arrest, for inflicting cruel and unusual punishment, for battery, and for malicious prosecution. Popham argued that the City was liable to him for negligently training the police officers and for ratifying their acts against him. Ruble and Wilson asserted a counterclaim against Popham for the injuries they had received in arresting him.

The district court denied the defendants’ motion for summary judgment but nonetheless dismissed, with Popham's consent, the claims under Sections 1985 and 1986 and the state law claims against the City. The matter then came to trial, and at the close of Popham’s case the defendants moved for a directed verdict. Popham conceded at that time that both the Eighth Amendment and the negligent training claims should be dismissed. With the exception of those two claims, the court denied the motion for directed verdict. The court denied another motion by the defendants for a directed verdict at the close of their case, and the case then went to the jury on special interrogatories. The jury found for the City on all issues and for the police officers on all issues except one. They found that the four officers had used excessive force in arresting Popham and awarded him $30,000 in compensatory damages. However, in answering the special interrogatories, the jury indicated that the police officers were entitled to immunity. Therefore, before entering judgment on the verdict, the court directed the parties to submit briefs on the issue of whether the officers were entitled to immunity for their use of excessive force. The court determined that the defendants were not entitled to immunity and accordingly entered judgment in favor of Popham.

The police officers then filed a motion for judgment n.o.v. or, in the alternative, for a new trial. The City filed a motion to alter and amend the judgment because the court had mistakenly entered judgment against it in addition to the officers. The court denied the police officers’ motion but granted the City’s. In a subsequent proceeding, the court awarded Popham one-third of the attorneys’ fees he requested and denied the defendants’ request for attorneys’ fees. These appeals followed.

II

DISCUSSION

A. SPECIAL INTERROGATORIES

The defendants contend that the district court erred in interpreting the jury’s answers to the special interrogatories. There is, without a doubt, an apparent inconsistency in the jury’s answers. As indicated, in response to Special Interrogatory 3, the jury found that the defendants had used “force shockingly disproportionate to the need” and, in response to Special Interrogatory 7, awarded Popham $30,000 in compensatory damages for the deprivation of his constitutional rights. The jury also found that the defendants possessed probable cause to arrest Popham (Interrogatory 1) and that the defendants did not arrest Popham for the purpose of depriving him of his First Amendment right to speech (Interrogatory 2). No other grounds of liability for the deprivation of constitutional rights were presented to the jury. Therefore, the jury must have intended the $30,000 award to be compensation for the excessive force used in effecting the arrest. However, in response to Special Interrogatory 4, the jury found that the defendants were entitled to qualified immunity. Such a finding seems inconsistent with the award of $30,000.

[1575]*1575Fed.R.Civ.P. 49

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Bluebook (online)
820 F.2d 1570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/popham-v-city-of-kennesaw-ca11-1987.