51 F.3d 1346 (7th Cir. 1995)

In the United States Court of Appeals For the Seventh Circuit

No. 94-1151

CARRIE JAFFEE, as Special Administrator for Ricky Allen, Sr. and LECHIA ALLEN, Next Friend of RICKY ALLEN, JR., and BRANDON ALLEN,

Plaintiffs-Appellees,

v.

MARY LU REDMOND, Hoffman Estates Police Officer and VILLAGE OF HOFFMAN ESTATES, ILLINOIS,

Defendants-Appellants.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 91 C 4153--Milton I. Shadur, Judge.

ARGUED SEPTEMBER 14, 1994

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DECIDED APRIL 6, 1995

Before WOOD, GODBOLD* and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

On June 27, 1991, Police Officer Mary Lu Redmond responded to a reported fight in pro- gress at an apartment complex. When she arrived at the scene, she was advised that there had been a stabbing inside the building. Within minutes thereafter, Officer Redmond stated that she fired her weapon and killed Ricky Allen, Sr. as he was pursuing and rapidly gaining on another man, and was poised to stab him with a butcher knife. Allen's surviving family members filed suit against Officer Redmond and her employer, the Village of Hoff- man Estates, Illinois (the "Village"), alleging that Officer Redmond's use of deadly force violated Allen's rights under the Fourth and Fourteenth Amendments to the United States Constitution, and that Officer Redmond caused Allen's wrongful death under the Illinois Wrong- ful Death Act, 740 ILCS 180/0.01-2.2 (1994). Redmond and the Village appeal the $545,000 jury verdict. The appel- lants raise two issues on appeal: first, that the district court erred in instructing the jury on the use of deadly force; and second, that the district court erred by refus- ing to recognize a privilege for confidential communica- tions between Officer Redmond and the licensed clinical social worker from whom she sought counseling. We af- firm as to the first issue and reverse and remand as to the second issue dealing with the question of privilege.

1. BACKGROUND

A. The Shooting

On June 27, 1991, Officer Redmond, who was alone on patrol duty in that area on the day shift, responded to a dispatcher's report of a fight in progress at the Grand Canyon Estates apartment complex in the Village of Hoffman Estates, a suburb of Chicago, Illinois. Redmond was the first police officer to arrive at the scene. Officer Redmond testified that, as she pulled into the apartment complex parking lot, she saw two AfricanAmerican women running toward her car. waving their arms above their heads, (1) one of whom stated that there had been a stabbing inside the building. Redmond relayed this information to her dispatcher and requested assistance and an ambulance.

As Redmond approached the apartment building, five men ran out the front door yelling and screaming. One of the men was waving a pipe above his head. At this time, Officer Redmond testified that she ordered the man carrying the pipe to drop the pipe and also ordered everybody to the ground. After repeating the command "Drop the pipe" several times to no avail, Officer Red mond was forced to draw her service revolver. Almost immediately thereafter, two more men -- a Caucasian man followed by an African-American man in hot pursuit--came running out of the door of the building. Officer Redmond testified that the African American man, later identified as Ricky Al len, Sr., was armed with a butcher knife, was chasing and gaining on the Caucasian man, and was "directly behind" and poised to stab him when she fired the fatal shot. Officer Redmond testified that she commanded Allen to drop the butcher knife several times be fore firing:

I ordered the black male subject with the knife to drop the knife several times. I told him to drop the knife and get on the ground.... I was yelling at him to drop the knife and get on the ground.... [H]e did not drop the knife and he did not get on the ground.... [I yelled] at least three times. I just kept yelling the minute I saw him.

Officer Redmond explained the moment before the shooting as follows:

As [Allen] was gaining speed on the first subject until they were directly-he was directly in front of him, like the first subject's back, and then the second subject, as he was gaining on him the second subject, the male black subject with the knife took the knife back, raised it above his head and I waited, and as he started to come down with the knife and made the downward motion, I fired one shot at him.

Redmond testified that she "didn't even have time to square up," (2) when she fired her weapon "[b]ecause the second subject was about to kill the first subject with the knife." She noted that only three or four seconds elapsed from the time Allen emerged from the apartment building door until the time she fired. Four of Allen's brothers and sisters, all of whom witnessed the shooting, testified that Allen was unarmed when Officer Redmond fired her weapon.

Officer Redmond testified that after she fired the single shot at Ricky Allen, Sr., he fell to the ground and she ran toward him with her gun at her side. She observed the butcher knife lying on the grass approximately two or three feet from his body. She repeated her request for backup support and an ambulance on her portable radio, as "people came pouring out of the buildings." Redmond stated that several people within the crowd "started to charge" at her, as they were "yelling," "screaming,", "swearing" and "quite hysterical." She raised her gun when one person from the crowd came within arm's length, and ordered everyone "to get back, get down, get beyond the sidewalk, get on the ground." In her testimony, Officer Redmond made it clear that no one from the crowd attempted to come to Allen's aid, and that the knife was not moved from the place it landed when Allen fell to the ground until it was retrieved by one of the investigating officers.

Allen's siblings remembered the events just after the shooting differently. Connie Allen, his sister, testified that she attempted to approach her brother's body when Officer Redmond, with her gun raised, ordered her to get back and also stated that Redmond ordered her sister Sharon to step back at gunpoint. Connie Allen did not observe a knife lying on the grass near her brother's body until after the ambulance had taken the body away. When asked at trial why she had not reported what she had seen to any of the police investigating the shooting, Connie stated that she had not felt 'like talking to anyone' immediately after the shooting.

Officer Joe Graham arrived at the Grand Canyon Estates apartment complex shortly after the shooting. When he arrived, he saw a large crowd of people-approximately twenty-five to thirty AfricanAmericans and five to ten Caucasians---gathered on the grass, and a number of people "rushing out of the apartment buildings-to see what was going on." Officer Graham observed Officer Redmond standing on the lawn, behind Allen's body, with her gun drawn and aimed at the crowd. Officer Graham testified during his deposition that Officer Redmond appeared "somewhat bewildered" when he first arrived at the scene, and later at trial he explained that he meant she was "visibly shaken or upset or disoriented." Officer Graham testified that the members of the crowd were "fluctuating back and forth ... in a very chaotic movement," yelling that Officer Redmond "had shot Mr. Allen and that she didn't have to shoot him in the head" and that "they were going to sue the white bitch for shooting Mr. Allen." Officer Graham testified that when he knelt down to check for Allen's pulse, he saw a butcher knife lying on the grass approximately an arm's length away from the body.

B. Officer Redmond's Counseling

After the shooting, Officer Redmond sought counseling from Karen Beyer, a licensed clinical social worker. (3) certified by the state of Illinois as an employee assistance counselor and employed by the Village. Officer Redmond met with Beyer for the first time three or four days after the shooting incident and continued counseling for approximately two or three sessions per week through at least January of 1992, six months after the shooting." (4)

During pre-trial discovery, the plaintiffs learned that Officer Redmond had participated in a number of counseling sessions with Beyer, the licensed clinical social worker. At Officer Redmond's deposition, the plaintiffs inquired regarding the substance of her communications with Beyer. Officer Redmond refused to respond to this line of questioning, contending that her communications with a licensed clinical social worker were privileged. The plaintiffs subsequently subpoenaed Beyer to testify at a deposition and to produce her credentials as a counseling professional as well as all her "notes, records, [and] reports pertaining to Mary Lu Redmond." The defendants, Redmond and the Village, moved to quash the subpoena, maintaining that all of Officer Redmond's communications occurring within the context of the counseling relationship, as well as Karen Beyer's notes and reports pertaining to those communications, were privileged. The trial court denied the defendants' motion to quash, based on the judge's belief that the psychotherapist/patient privilege recognized in other circuits does not extend to a licensed clinical social worker,(5) and ordered Karen Beyer to testify as to "the disclosures made to her by Ms. Redmond of the incidents of the day that relate to [the shooting]." We wish to point out that the Illinois statute specifically grants the psychotherapist/patient privilege to social workers. See 740 ILCS 110/2, 110/10 (1994). The court ordered Officer Redmond to appear for a third deposition session to answer questions concerning her communications with Karen Beyer. Officer Redmond appeared for the third deposition session, and again the answers she gave regarding her counseling sessions with Karen Beyer were evasive and incomplete, obviously an attempt to protect her privileged communications.

When Karen Beyer appeared for her deposition, she limited her answers to only those facts concerning disclosures made by officer Redmond about the circumstances leading up to the shooting incident on June of 1992, six months after the shooting." (6) 27, 1991. Beyer also refused to produce any notes or reports from Officer Redmond's counseling sessions. The plaintiffs filed another motion to compel Karen Beyer to answer certain questions to which objections had been made and to produce all of her notes and reports on Mary Lu Redmond. After Karen Beyer's second deposition session, the plaintiffs filed another motion to compel further responses, and the trial judge responded with an order permitting unrestricted and unlimited inquiry into statements made by Officer Redmond to Karen of 1992, six months after the shooting." (7) Beyer during their counseling sessions. At her final deposition session, and again during trial, Officer Redmond respondd "I don't recall" to the majority of questions dealing with the substance of her counselling sessions with her therapist and licensed clinical of 1992, six months after the shooting." (8) social worker, Ms. Beyer. Ms. Beyer likewise refused to divulge her communications other than the officer's factual description of the events leading up to the shooting. Karen Beyer did produce three pages of redacted notes.

On April 6, 1993, the district court ordered that Officer Redmond would be barred from testifying at trial as to her version of the shooting incident "because plaintiffs' attorneys have been blocked from effective crossexamination." Just prior to trial, on December 10, 1993, the trial judge reconsidered and vacated this ruling, but made it clear that the jury would be instructed that it could dram, an adverse inference from the defendants' failure to produce Karen Beyer's notes and in fact gave such an instruction. At trial, the district judge instructed the jury that the defendants had no legal justification to refuse to produce Karen Beyer's notes of her counseling sessions with Officer Redmond. Over the defendants' objection, the district judge instructed the jury that it was "entitled to presume that the contents of the notes would be unfavorable to Mary Lu Redmond and the Village of Hoffman Estates." of 1992, six months after the shooting." (9) (Emphasis added.)

The trial judge also instructed the jury on the factors it could take into account in determining whether Officer Redmond's use of deadly force was proper. The court gave the plaintiffs' proffered Jury Instruction No. 5, over the defendants' objection, and rejected the of 1992, six months after the shooting." (10) defendants' Proposed Jury Instruction No. 7. The defendants' Proposed Jury Instruction No. 7 included two points omitted from the plaintiffs' Jury Instruction No. 5; first, that the jury should not consider a police officer's subjective intentions or motivations in using deadly force; and second, that the jury should make allowance for the fact that police officers frequently "have to make split second judgments under tense, uncertain, and rapidly evolving circumstances."

The jury returned a verdict in favor of the plaintiffs based on these jury instructions and awarded $45,000 for the federal constitutional claim and $500,000 for the state wrongful death claim. The defendants appeal.

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----- NOTES -----

1. The two women waving their arms were Ricky Allen, Sr.'s sisters, Connie Allen and Sharon Allen.

2. When the officer testified about having had insufficient time to "square up." she was stating that she did not have enough time to assume the proper stance before firing her weapon to ensure the most accurate aim.

3. Under Illinois law, a licensed clinical social worker provides "mental health services for the evaluation. treatment, and prevention of mental and emotional disorders ... based on knowledge and theory of psychosocial development, behavior, psychopathology. unconscious motivation, interpersonal relationships, and environmental stress." 225 ILCS 20/3 (1994). A licensed clinical social worker is a person "who (1) has a master's or doctoral degree in social work from an accredited graduate school of social work and (2) has at least three years of supervised postmaster's clinical social work practice which shall include the provision of mental health services for the evaluation, treatment, and prevention of mental and emotional disorders." 405 ILCS .511-122.1 (1994). An individual cannot obtain a license to practice clinical social work until he or she passes an examination for the practice of clinical social work and has completed either (a) a master's degree in social work and 3,000 hours of satisfactory supervised clinical experience. or (b) a doctoral degree in social work and 2,000 hours of satisfactory supervised clinical experience. 22S ILCS 20/9 (1994). Karen Beyer, the Director of Health and Human Services for the Village. received her master's degree in social work from Loyola University in 1969. At the time of trial. she had had some twelve thousand hours of experience in individual, family, and marital psychotherapy, and had participated in clinical supervision in psychotherapy for doctoral psychology students from several psychology programs.

4. All of Officer Redmond's conversations with Karen Beyer after June 27, 1991 took place during counseling sessions.

5. The judge stated at the hearing on the defendants' motion to quash:

But my sense has consistently been, when dealing with these problems, that the place to go as the best source is to look at what the Supreme Court's proposals had been and what have now been referred to as the "Standards," although they are not the Federal Rules of Evidence. And when I looked at that I found that Standard 504 is one that adopts a privilege for psychotherapists. Again referring to Weinstein at 504[03] at page 504-17, there is a psychotherapist-patient privilege. and that expressly does not apply to social workers .... So where I come out on this one is that someone who is engaging in a kind of counselling to assist someone. maybe over a traumatic experience - someone in the category of Ms. Bevyer, who is identified as a licensed clinical social worker and a certified employee assistance counselor--does not stand entitled to privilege under the federal Standard, and that my perception is that the guide to how we should function in these cases, where we are looking at a federal claim as well as a state claim, is that it is the federal standard that ought to control and not the provisions of an Illinois statute that might extend beyond that.

6. Karen Beyer also responded to general questions dealing with her credentials as a licensed clinical social worker and the timing and duration of her meetings with Officer Redmond.

7. Judge Shadur commented at the hearing on the plaintiffs' motion to compel further discovery as follows:

[M]y sense of the appropriate sanction. if you want to call it that, is to give the plaintiff access.... And that means that as far as I am concerned the bars are pretty well down to the opportunity to have access to Ms. Beyer in terms of what she recalls of those conversations.... unfettered type of examination of Karen Beyer ... would be an appropriate course of action.

8. We note that noncompliance with a court's order is justified when the order commands the revelation of privileged information, the disclosure of which would result in irreparable injury. See In re Novak. 932 F.2d 1397. 1401 n. 7 (11 th Cir.1991).

9. Jury Instruction No. 8 provided in full that

You have heard evidence in this case that Karen Beyer. while an employee of the Village of Hoffman Estates, had numerous conversations with Mary Lu Redmond and made notes of those conversations. You have also heard testimony that Ms. Beyer's notes were the property of the Village of Hoffman Estates.

During the course of this lawsuit the Court ordered the Village of Hoffman Estates to turn over all of Ms. Beyer's notes in plaintiff attorneys. The Village was provided with numerous opportunities opportunities to obey the Court's order and refused to do so. During the course of this lawsuit Mary Lu Redmond also testified that she would not authorize or direct Ms. Beyer to turn over those notes to plaintiffs attorneys.

During Ms. Beyer's testimony she referred to herself as a "therapist." although she is not a psychiatrist or psychologist - she is a social worker. This Court has ruled that there is no legal justification in this lawsuit, based as it is on a federal constitutional claim, to refuse to produce Ms. Beyer's notes of her conversations with Mary Lu Redmond. and that such refusal it-as unjustified unjustified.

Under these circumstances, you are entitled to presume that the contents of the notes would be unfavorable to Mary Lu Redmond and the Village of Hoffman Estates.

(Emphasis added.)

10. Jury Instruction No. 5 provided in full that

Under the circumstances of this case, you may find that Mary Lu Redmond's use of deadly force caused Ricky Allen. Sr. to be deprived of his life without due process of law if and only if the deadly force was not necessary to prevent death or great bodily harm to another person.

In determining whether the deadly force used by Mary Lu Redmond was necessary to prevent death or great bodily harm, you must consider all the facts and circumstances with which Mary Lu Redmond was confronted. For that purpose the reasonableness of Mary Lu Redmond's decision to use deadly force is to be judged from the perspective of a reasonable police officer who was confronted with the circumstances presented to Mary Lu Redmond at the moment the force was used. in other words, the question is whether a reasonable officer in Mary Lu Redmond's place would then have believed that Ricky Allen. Sr. was about to cause death or great bodily harm to another person and that deadly force was necessary to prevent such harm.

What the circumstances are that were presented when Mary Lu Redmond used deadly force has been the subject of conflicting testimony and is for you to decide.

Defendants' Proposed Jury Instruction No. 7 provided in full that

A police officer's use of force, whether deadly or not. is excessive and violates the constitution only if it is not objectively reasonable. Use of force is objectively reasonable if a reasonable officer on the scene. confronted with the same circumstances, could have taken actions similar to those taken by the defendant Mary Lu Redmond.

In determining whether the force used by the defendant is objectively reasonable, you must consider all of the facts and circumstances with which the defendant was confronted, including, but not limited to:

   1. The information available to the defendant at the time of the incident;
   2. The acts of the plaintiff(s) or plaintiff's decedent; and
   3. Whether the plaintiff's decedent reasonably appeared to be a threat to the officer or to other persons.
The defendant's subjective intentions or motivations, good or evil, should not be considered in determining whether she acted in an objectively reasonable manner.

The reasonableness of the defendant's conduct is to be considered from the perspective of a reasonable officer at the moment the force was used. and not with the 20/20 vision of hindsight. In other words, you must make allowance for the fact that officers may have to make split second judgments under tense, uncertain, and rapidly evolving circumstances.