Larry R. SALADINO, Plaintiff-Appellant, v. Robert L. WINKLER, Defendant-Appellee, 609 F.2d 1211

BAUER, Circuit Judge. Plaintiff-appellant Larry R. Saladino instituted this civil rights action under 42 U.S.C. § 1983 against defendant-appellee Sergeant Robert L. Winkler, who was then a deputy with the Office of Sheriff, Du-Page County, Illinois. Saladino sought damages and other relief for injuries he sustained as a result of Winkler’s alleged use of excessive force in disarming the plaintiff. Winkler defended on the ground that he was reasonably in fear of imminent, great bodily harm and was therefore entitled to use deadly force in self-defense.

From the judgment entered on the jury verdict in favor of the defendant, Saladino appeals. We affirm. I On April 10, 1975 Larry Saladino, while driving with Joyce Kubacha, stopped his automobile on Mack Road near Winfield, DuPage County, Illinois. He got out of his car with a shotgun and discharged it at a tree stump, purportedly for target practice. He then returned to the car. Stephen Black, a teen-age boy who lived nearby, saw the episode and told his mother. Mrs. Black called the DuPage County Sheriff’s Office and complained. Defendant Robert L.

Winkler, a deputy sheriff, was sent in a marked squad car to investigate. With his car lights and siren on, Winkler drove to the scene, stopping his car within ten feet of Saladino’s vehicle located diagonally across the street. According to plaintiff’s evidence, Winkler ordered Saladino and Kubacha to get out of their car. Kubacha obeyed the order and started to approach the squad car. Winkler told her to halt; she did so. Saladino left his car from the driver’s side.

Winkler asked him if he had a shotgun and Saladino said “yes.” He went back into the car to get it out because he presumed from the question that Winkler wanted him to do so. Plaintiff stated that he brought the gun out of the car with the barrel pointed in the air. He admitted that in bringing the shotgun out of the car he pivoted toward defendant and that his left hand was on the barrel and his right hand on the stock.

According to the plaintiff’s testimony, he was in the act of turning the weapon over to the deputy sheriff when Winkler drew his .357 magnum caliber revolver and shot Saladino through the abdomen. The bullet shattered his spinal cord, resulting in paraplegia. Winkler’s version of the incident is different. Winkler testified that he approached the Saladino car in his marked squad car with all lights flashing. Saladino and Ku-bacha sat in the car and did not acknowledge his presence. They were doing something which involved the area between them on the front seat of the car.

Winkler then said over his loudspeaker: “Do you have a shotgun in the car?” They did not look up; Kubacha then exited. He asked her again if there was a shotgun in the car, and she answered “No.” At that point Saladino opened the driver’s side door and started to leave the car; he was partially hidden by the door. Wink-ler asked him if he had a shotgun in the car, and plaintiff said, “No, we don’t have a shotgun.” Winkler testified that Saladino then reached back into the car and Winkler said he heard the sound of a shotgun mechanism being activated.

Next he heard a hollow plastic sound like that of an empty shotgun shell striking the pavement. According to Winkler, Saladino then pulled the shotgun out of the car, stepped from behind the open car door, raised the shotgun to the firing position, pointed it directly at defendant’s head and said, “Now, you freeze!” It was at this time that Winkler drew his service revolver and fired at Saladino. After Saladino was shot, Kubacha began going through her purse; Winkler said he feared she too might have a gun. At this time Saladino was again reaching for the shotgun; Winkler ordered him to stop.

Again Kubacha began going through her purse; plaintiff yet again tried to reach for the gun. Warning that he would be forced to shoot again, Winkler advised plaintiff to leave the shotgun alone. After handcuffing Kubacha, Winkler called for an ambulance and began administering first aid to Saladino. Kubacha testified that she did not recall if plaintiff said anything when Winkler asked him if he had a shotgun, and that plaintiff held the gun pointed in the air when he withdrew it from the car.

Stephen Black testified that Saladino, taking the gun from the car, held it for a period of time, and then lowered it toward Winkler. Plaintiff’s complaint alleged that Wink-ler’s use of excessive force in shooting him constituted a deprivation of liberty without due process of law in violation of 42 U.S.C. § 1983. Winkler defended on the ground that, being reasonably in fear of imminent, great bodily harm, he was justified in using deadly force in self-defense. Trial was had solely on the issue of liability, and the jury returned a unanimous verdict in favor of the defendant.

The district court entered judgment on the verdict, and the plaintiff subsequently appealed from that judgment to this Court. II In his first argument on appeal, Saladino contends that he was deprived of a fair trial due to the admission in evidence of irrelevant and prejudicial testimony elicited by defense counsel during cross-examination of plaintiff’s witness, Joyce Kubacha. Specifically, Saladino argues that the court improperly allowed defense counsel to inquire into plaintiff’s relationship with Ms. Kubacha. We find this contention to be without merit.

The partiality of a witness is properly subject to exploration at trial, and is relevant to the credibility of the witness and the weight to be given to the testimony by the jury. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Since Ms. Kubacha was Saladino’s companion at the time of the incident and was a principal witness for the plaintiff at trial, the jury was entitled to assess her credibility as a witness and her bias, if any, in favor of the plaintiff. Moreover, the district court required the defendant to limit the examination of the relationship between the plaintiff and Ms.

Kubacha to an inquiry into their friendship. The court refused to allow the defendant to explore the intimacy of the relationship on the ground that the prejudicial effect of such testimony substantially outweighed its probative value. We conclude the court did not err in permitting defense counsel to make such a limited inquiry for the purposes of assessing the credibility and bias of the witness. Saladino further argues that the district court erred in allowing the defendant to cross-examine Ms. Kubacha regarding two inconsistent statements she had previously given to the police concerning the incident.

The record discloses that Ms. Kubacha admitted in open court that she had given prior inconsistent statements to the police, and we therefore regard plaintiff’s reliance on Rule 613 of the Federal Rules of Evidence as misplaced. Moreover, we find the challenged testimony to be properly admissible as relevant to the credibility of the witness. III Saladino also contends that the district court erred in permitting the defendant to prove that plaintiff was legally intoxicated at the time of the incident. The plaintiff’s intoxication was introduced to show that his judgment was impaired when the incident occurred.

This evidence was relevant to the issue of the reasonableness of the plaintiff’s conduct at that time, and was therefore admissible under Fed.R.Evid. 401. Nor do we regard the probative value of this evidence as substantially outweighed by the danger of unfair prejudice. Fed.R. Evid. 403. This evidence tends to make more probable that the plaintiff acted as the defendant contended he did or that plaintiff otherwise conducted himself in such a manner as to place the defendant reasonably in fear of his life.

The record discloses that the district court carefully weighed its decision to permit evidence of plaintiff’s intoxication. In that connection, the court indicated it would not give the jury instruction regarding intoxication initially offered by the defendant because of its concern that the jury might consider the evidence of plaintiff’s intoxication for purposes foreign to that for which it was admitted. We conclude the district court did not abuse the discretion afforded to it under Fed.R.Evid. 403.

IV Plaintiff further asserts as error that the defendant was improperly permitted to inquire of the plaintiff whether he knew at the time of the incident that he was in violation of the law by carrying open liquor in the automobile, carrying a loaded firearm in the automobile, discharging shotgun shells in the area, and driving on a revoked license. We find this assertion devoid of merit. • Only plaintiff’s knowledge of the violations and the explanations of them which he offered were elicited by defense counsel.

Plaintiff stated he was unaware that it was a violation to carry open liquor and a loaded firearm in an automobile, and further, that he was not aware that it was unlawful to discharge the shotgun in the area. Upon being asked whether he was aware that it was illegal to drive with a revoked driver’s license, plaintiff testified that he was not aware that his license was revoked at the time of the incident. However, the plaintiff further stated that his driver’s license had been revoked in October 1968, and that it had not been reinstated in Illinois at the time of the occurrence.

We regard this testimony as an admission of his license revocation. The trial court weighed carefully its decision to admit plaintiff’s testimony to these questions. At the time it was admitted, the court instructed the jury that the evidence would be considered only for the limited purpose of showing the plaintiff’s state of mind during the incident.

Plaintiff’s awareness of whether his conduct was in violation of the law is clearly relevant to his state of mind at the time of the occurrence, and is probative of whether he could reasonably be believed not to have turned a shotgun on the defendant and not to have threatened the defendant’s life. We conclude that the district court did not abuse its discretion in admitting plaintiff’s testimony as to his awareness of the unlawfulness of his conduct for the purpose of showing plaintiff’s state of mind at the time of the incident.

V We have examined the plaintiff’s other arguments and, in view of the record, find them equally without merit. The judgment appealed from is affirmed, and the Clerk of this Court is directed to enter judgment accordingly. AFFIRMED.