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SMITH v. LEES

March 28, 1977

JAMES SMITH, ET AL.
v.
OFFICER BARRY LEES, ET AL.



The opinion of the court was delivered by: DITTER

 This is a civil rights action in which damages were sought from a police officer, the police commissioner, and the City of Philadelphia. Presently before the court is the plaintiffs' motion to proceed with an appeal in forma pauperis. For the reasons that follow the motion will be denied.

 The plaintiffs are three residents of the City, John Smith, Earline Dollard, the woman with whom he lives, and her son, John Dollard. Barry Lees is the officer who was actually involved in the incident giving rise to the suit, while the claim against Police Commissioner Joseph F. O'Neill and the City was predicated on the allegation that they knew or should have known of Lee's propensities to engage in violent and unconstitutional conduct but took no remedial action. During the trial I granted the City's motion to dismiss and directed a verdict in favor of O'Neill as against plaintiff Earline Dollard. Thereafter, in response to interrogatories the jury returned a verdict in favor of James Smith against Lees for $32,500. in compensatory damages; found in favor of Lees as against the other two plaintiffs, Earline Dollard and John Dollard; and found in favor of O'Neill as against Smith and John Dollard. Believing that the City should not have been dismissed nor a directed verdict entered for O'Neill against Earline Dollard, that the verdict in favor of Smith as against Lees was insufficient, and that the remaining verdicts were against the weight of the evidence, plaintiffs, without having filed post-trial motions, took a direct appeal to the Court of Appeals for the Third Circuit.

 The facts giving rise to this suit were sharply disputed by the parties. The incident in question occurred at about 10:00 o'clock on the evening of October 30, 1973. According to the defendants, Officer Lees and his partner were on sector patrol when they received a call that a bar operated by Pedro Borgus had been robbed. Responding to the call, they were met in front of the bar by Borgus who pointed to two men running from the scene and stated that they had just stolen his cash register. Lees pursued the one whom he later identified as John Dollard through several abandoned row houses. With Lees close behind, Dollard then ran into his own house, closed and locked the door. Lees knocked on the door and was admitted by Earline Dollard. He told Mrs. Dollard that he was looking for someone who had just stolen a cash register. There were approximately nine people in the house at this time. Lees observed John Dollard standing at the top of the stairs leading to the second floor of the house and started up after him. Smith met Lees at the foot of the stairs and after a brief, but heated discussion as to whether Lees needed a search warrant, Smith began to hit Lees. The officer responded by striking Smith once on the head with a blackjack, knocking him to the floor. At this point, Earline Dollard jumped on Lees back and began hitting him. Other officers arrived and Earline Dollard and Smith were arrested. Lees proceeded up the stairs, found John Dollard hiding in a bedroom, and arrested him. *fn1"

 The answers to special interrogatories submitted to the jury show its substantial acceptance of defendants' factual contentions. Specifically, the jury concluded that:

 
1. Lees observed two men running away from the bar operated by Pedro Borgus at 3rd and Diamond Street.
 
2. Borgus told Lees these two men had stolen his cash register.
 
3. Lees honestly and reasonably believed that one or both of these two men had stolen Borgus' cash register.
 
4. Lees pursued these two men.
 
5. One of these men was John Dollard.
 
6. When Lees entered the home of Earline Dollard he had an honest and reasonable belief that John Dollard had stolen Borgus' cash register and that John Dollard had entered the home of Earline Dollard.
 
7. Lees did not negligently open the door to Earline Dollard's house.
 
8. Lees did not deprive Earline Dollard of a right guaranteed to her under the constitution by entering her dwelling or by the ...

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