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Moore v. Novark9/28/1995
This appeal results from a judgement awarding damages for malicious prosecution, intentional infliction of emotional distress, and conspiracy. Appellee, Marion James Novark ("Novark"), a former deputy constable of Harris County Precinct 4, brought suit against appellants, who were his former superior, Constable Dick Moore ("Constable Moore"), and fellow deputies, Kenneth R. Schelsteder ("Schelsteder"), and Preston Ray Van Shoubrouek ("Van Shoubrouek"), (jointly referred to as "the deputies"), after he was acquitted of charges alleging he violated a prisoner's civil rights. The deputies bring sixteen points of error and Constable Moore raises ten points. We reverse and render in part and affirm as modified in part.
FACTS
On March 29, 1983, Van Shoubrouek and Schelsteder investigated a residential burglary. Schelsteder arrested William Scott Bossert ("Bossert") and transported him to the station, where he was handcuffed to a chair for questioning. Two unloaded weapons recovered from Bossert were on the table where Bossert was seated. During the questioning, Novark allegedly picked up one of the guns and pretended to put a bullet into the chamber. He was accused of pointing the gun at Bossert and pulling the trigger two or three times while questioning him about his involvement in several burglaries. The prisoner was visibly upset and began crying. Schelsteder then allegedly told Novark to put the gun down and Novark complied.
Deputy Steve Haines, reported the "Russian roulette" incident to his supervisor, Sergeant J.R. Jones. Constable Moore, the constable in charge of Harris County Precinct 4, was then notified about the incident. Constable Moore requested an investigation. As a result, Constable Moore was furnished with written statements from Schelsteder, Van Shoubrouek, and Haines, all of whom were present during Bossert's questioning. Schelsteder and Van Shoubrouek also prepared formal sworn statements with more detail.
While there are some differences in the deputies' statements, they generally reported that Novark pretended to load the gun, pointed it at Bossert and pulled the trigger two or three times. Only Van Shoubrouek stated that he saw Novark point the gun at Bossert. The other deputies reported hearing the sound of the gun's hammer striking and that Novark had the gun in his hand.
Based on these statements, Constable Moore decided to discharge Novark. Sergeant Jones, Novark's supervisor, told Novark he was fired on April 10, 1983. Novark's employment contract provided he was an at-will employee, subject to termination for any reason.
Novark's termination and details of the incident were reported in the media. A newspaper reporter contacted Constable Moore and questioned him about the incident. Constable Moore confirmed that Novark had been terminated and responded that he planned to continue the investigation and present his findings to the district attorney's office. He stated that Novark had a "clean record" in his office prior to this incident. The original article also quoted an unnamed "official close to the investigation" who supplied details of the incident, including an erroneous report that the gun was loaded during the Russian roulette incident. In a later news report, Constable Moore stated he no longer intended to take the case to the district attorney because the prisoner had not filed a complaint and Novark already had been punished by having his employment terminated. Constable Moore undertook no further investigation and no charges were pursued by the district attorney's office.
Shortly after reading a newspaper account of the incident on April 15, 1983, FBI Agent John Trethewey contacte
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