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Walmsley v. City of Philadelphia and Gregor Sambor and Kevin Tucker

argued: January 11, 1989.

GERALDINE WALMSLEY, ADMINISTRATRIX OF THE ESTATE OF THOMAS D. WALMSLEY, DECEASED, AND ON HER OWN BEHALF, APPELLANT,
v.
THE CITY OF PHILADELPHIA AND GREGOR SAMBOR AND KEVIN TUCKER, POLICE COMMISSIONERS OF THE CITY OF PHILADELPHIA, AND POLICE OFFICER JOHN DOE AND OTHER UNKNOWN AND UNNAMED OFFICERS AND AGENTS OF THE CITY OF PHILADELPHIA POLICE DEPARTMENT, INDIVIDUALLY AND IN THEIR CAPACITY AS OFFICERS OF THE CITY OF PHILADELPHIA, POLICE OFFICER DAVID GROVE, BADGE # 3407, POLICE OFFICER ERNEST COLWELL, BADGE # 7202, POLICE OFFICER MICHAEL VALENTI, BADGE # 2268, POLICE OFFICER MARK GOLDBERG, BADGE # 1967, POLICE LT. AUGUSTINE CARRE, BADGE # 98, APPELLEES, V. ROBERT WALMSLEY, THIRD-PARTY DEFENDANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 87-5182.

Higginbotham, Cowen and Aldisert, Circuit Judges.

Author: Cowen

Opinion OF THE COURT COWEN, Circuit Judge

This civil rights action alleges that two Philadelphia police officers so brutally beat the deceased, Thomas Walmsley, that he died from head wounds inflicted by the officers. The district court granted the defendants' motion for a directed verdict at the conclusion of the plaintiff's case. Because we find that the plaintiff's evidence, when examined in a light most favorable to her position, could persuade a reasonable jury to conclude that Thomas Walmsley's civil rights were violated, we will reverse the judgment of the district court.

I.

Since the issue before us is whether the district court properly granted defendants' motion for a directed verdict, we will summarize the evidence presented to the jury which would, if credited, support a verdict in favor of the plaintiff.*fn1

A.

Thomas Walmsley died on the morning of September 10, 1985, as the result of swelling of the brain, caused by multiple head injuries. In addition to bruising around his left eye and mouth areas, an autopsy done after his death revealed multiple and extensive contusions of his scalp.*fn2 According to expert testimony, these injuries were almost certainly caused by multiple blows to the head with a blunt instrument. App. at 315.3. An expert also testified that it was the head/scalp injuries, rather than the facial injuries, which caused the brain swelling resulting in Thomas Walmsley's death. App. at 235. Although a toxicology report produced after the autopsy also disclosed lethal levels of barbiturates and diazepam in Thomas Walmsley's ("Tom") body, an expert testified that in his opinion these drugs were not responsible for the brain swelling that caused Tom's death. App. at 298, 301. That expert also testified that it was unlikely Tom's injuries could have resulted from a fall, resulting in contact with a wall or rock, or from a fistfight, due to their severity, location, and the lack of external abrasions. App. at 293-97. He opined that it was possible the injuries were the result of being clubbed with a nightstick. App. at 293.

At the time of his death, Tom was twenty-six years old, about six feet four inches tall, and weighed approximately 230 pounds. He was employed as an independent contractor who repaired transmissions, and resided at 226 West Fisher Street, in Philadelphia, with his brother, Robert Walmsley ("Robert"), and two of his brother's friends, Billy Ray and Carl Hocher.

On the evening of September 9, 1985, Robert, Carl Hocher and another friend, James McHale were watching Monday Night Football at 226 West Fisher Street. Robert planned to have a meeting of the four persons living in the house following the game to discuss cleaning up the house, and the designation of specific individuals who would be responsible for particular chores. Since Billy Ray was working that evening, and his brother Tom was also out, Robert planned for the meeting to take place at about midnight, after the game.

After Billy Ray returned from work, Robert telephoned his brother, who had since returned and was in his bedroom, to ask him to come to the meeting. When Tom did not answer the phone, Robert went up to his room to get him. After banging on the door, which produced no response, Robert opened the door to find Tom in bed with a woman Robert did not know. Tom became angry over the intrusion, while Robert was upset that Tom had brought a strange woman into the house, and an argument quickly ensued. The argument developed into a physical confrontation, and while accounts of the confrontation vary, several witnesses testified that the brothers were basically wrestling (not exchanging blows), until the last part of the fight, which took place outdoors in front of the house. Witnesses also testified that Tom's head did not bang into any hard object or structure, such as a wall, stair, or rock, throughout the confrontation. See, e.g., app. at 68-69.

The parties agree that during the last part of the fight, several punches were exchanged, and Tom was struck two or three times in the face. Neighbors, meanwhile, had called the police, who arrived shortly thereafter and took Robert and a friend into custody. Witnesses observed Tom, then suffering from a swollen eye and bloody lip, drive away from the scene with his girlfriend. At no time during the confrontation did Tom lose consciousness or appear disoriented.

After leaving 226 West Fisher Street, Tom drove to his parents' house, about a ten minute drive. His mother testified that she applied ice to his eye, and brushed his hair back. His sister also testified that she touched her brother's face and hair. Tom was still angry and agitated. He told his family that he was going back to his brother's house to wreck everything there, and that he would get a gun and shoot anyone who came back to the house. Then, after sending his girlfriend home in a taxi, Tom left his parents' house and returned to his brother's house.

Upon arriving at his brother's house, Tom apparently carried out his promise, destroying an aquarium, televisions, video and electronic equipment, mirrors, lamps, and other breakable items. At about 1:00 a.m., Tom's sister Angelina Petel called Robert's house and spoke to Tom. Tom told her that he had wrecked everything. Tom, at that point, was the only person in the house.

Meanwhile, neighbors had again contacted the police. Officers Colwell and Valenti arrived at approximately 1:15 a.m. According to their testimony, they went to the front of the house. Colwell testified that he then went into the alley which led to the back of the house -- with Valenti remaining behind-- and that he saw Tom come out of the house, and in the area of the porch, landing, or steps behind the house, yell at the house. Valenti also testified that he saw Tom come out of the house, go down into the yard, and enter the alley while hollering in a loud voice. According to Colwell and Valenti, Tom then walked towards the officers and was arrested. He was cooperative, and both Valenti and Colwell testified that they did not engage in a struggle with him or strike him. Thus, according to Valenti and Colwell's testimony, neither officer was in the backyard, or on the porch, landing or steps behind the house, neither officer entered the house, and neither officer ever had occasion to or did strike Tom.

The officers' testimony is contradicted by the testimony of two neighbors who were observing the events that evening. Steven Chalmers testified that he observed two police officers, one in the alley, and one in the backyard, and that the officer in the backyard told him, "It's all over, you can go back in." App. at 152. Chalmers nevertheless continued observing, and saw two other officers bring Tom off the back steps to the back of his house down into the yard. App. at 154. His impression was that these two officers were bringing Tom out of his house. Id. He identified Officers Valenti and Colwell as the two officers. He testified that Tom appeared to be handcuffed at that time, and that he was walking slowly, and with his head down.

Another neighbor, George Klein, testified as follows regarding what he observed during the second incident:

BY [PLAINTIFF'S ATTORNEY]

Q: And when you heard this glass breaking, what did you do?

A: I went to the front door to see what was going on, and I heard all the glass breaking. It sounded like somebody was demolishing the house. So I yelled in the house to call the police. And then the police came.

Q: Did you see who arrived first or what vehicle arrived first?

A: A car arrived first and then another car. The officers that arrived first went around the back and the one officer went around front, stayed around front, knocking on the door.

Q: You say you saw an officer knocking on the door?

A: Yes.

Q: And you say -- how many officers went around back?

A: Two that I know of.

Q: And you saw the police go down American Street?

A: Yes.

Q: And you lost sight of them?

A: Yes.

Q: And you inferred that they went --

A: Yes, behind the house.

Q: You didn't actually see them go behind the house, did you?

A: No.

Q: What did you see next?

A: I seen a bunch of shadows in the ...


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