UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-1196
ELTON CANSLER,
Plaintiff – Appellant, v.
ALAN A. HANKS,
Defendant – Appellee,
and
EDWIN C. ROESSLER, JR.; FAIRFAX COUNTY,
Defendants.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:16-cv-01589-LO-TCB)
Argued: February 19, 2019 Decided: June 17, 2019
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge King wrote the opinion, in which Judge Motz and Judge Thacker joined.
ARGUED: Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. Kimberly Pace Baucom, FAIRFAX COUNTY ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellee. ON BRIEF: Maxwelle C. Sokol, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. Elizabeth D. Teare, County Attorney, Karen L. Gibbons, Senior Assistant County Attorney, Robert M. Hardy, FAIRFAX COUNTY ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 KING, Circuit Judge:
Plaintiff Elton Cansler initiated this litigation under 42 U.S.C. § 1983 by filing a
complaint in the Eastern District of Virginia against Officer Alan A. Hanks of the Fairfax
County Police Department, alleging his use of excessive force with a taser in violation of
the Fourth Amendment. A jury found against Cansler and in favor of Officer Hanks,
concluding that excessive force was not used. Cansler challenged the verdict by
requesting judgment as a matter of law, pursuant to Federal Rule of Civil Procedure
50(b). The court, however, ruled that the verdict is sufficiently supported by the evidence
and denied the motion. On appeal, Cansler contends that the court erred in its Rule 50(b)
ruling and also in failing to give a proposed instruction regarding taser use. As explained
herein, we affirm.
I.
A.
On December 22, 2016, Cansler filed his complaint in the Eastern District of
Virginia against Officer Hanks and two other defendants. 1 The complaint contains three
counts, each of which emanated from the September 2015 tasing of Cansler. The first
count, however, alleges the only claim pertinent to this appeal. Cansler therein alleged
that Hanks used excessive force with a taser, in contravention of the Fourth Amendment.
1 In addition to suing Officer Hanks, Cansler alleged claims against Fairfax County and the chief of the county’s police department.
3 After conducting discovery, Cansler and Officer Hanks filed cross-motions for
summary judgment, each of which the district court denied. By his motion, Hanks sought
qualified immunity and relied on the “objective reasonableness” standard — the multi-
factor analysis applicable to excessive force claims under the Supreme Court’s decision
in Graham v. Connor, 490 U.S. 386 (1989). Pursuant thereto, Hanks argued that he was
entitled to qualified immunity because he had not committed a constitutional violation.
Hanks also contended that, if his actions somehow contravened the Fourth Amendment,
he had not violated any clearly established constitutional right.
In October, 2017, the district court denied Hanks’s request for qualified immunity
and ruled that genuine issues of material fact justified a trial on the excessive force claim.
More specifically, the court identified factual questions concerning whether Cansler had
“posed an immediate threat to the safety of Officer Hanks or others,” and whether he had
“actively resist[ed] arrest.” See Cansler v. Hanks, No. 1:16-cv-01589, at 3 (E.D. Va. Oct.
25, 2017), ECF No. 114.
B.
1.
In November, 2017, the district court conducted a jury trial on Cansler’s excessive
force claim. Among the witnesses was Officer Hanks, who described the pertinent events
of September 24, 2015. 2 Hanks was on patrol in Fairfax County when he was informed
2 Under the standard of review applicable to our review of the post-trial Rule 50(b) ruling, we accept and recite the facts in the light most favorable to Hanks, as the (Continued) 4 by radio that a pair of sunglasses had been stolen from the counter at a local bank. As
part of that notification, he was provided with a description of the suspect: African-
American male wearing a grey t-shirt and a black hat with a silver rim. Because a
different police officer had already responded to the bank, Hanks promptly searched an
area near the bank, looking for the person described.
As he was driving near the bank, Officer Hanks identified a person — that is,
Cansler — who matched the description provided. Hanks pulled his police car over
where Cansler was walking with his hands in his pants pockets. Exiting his police
vehicle, Hanks approached Cansler and asked him to remove his hands from his pockets.
When Hanks inquired about whether Cansler knew about a missing pair of sunglasses,
Cansler replied that he did. Cansler then reached into a pants pocket, produced a pair of
sunglasses, and handed them to Hanks.
Officer Hanks explained that, as they spoke, Cansler again placed his hands into
his pockets. As a result, Hanks instructed Cansler not to conceal his hands. Cansler
complied with that request and removed his hands from his pockets, revealing the inside
of his right pocket. Attached to that pocket was a metal clip, which Hanks recognized as
part of a pocketknife. Upon observing the knife, Hanks grabbed Cansler’s right arm and
ushered him toward the police car. Hanks applied force to Cansler’s back, pressed him
against the police car, and told him to place his hands on the hood. This physical contact
prevailing party at trial. See U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d 131, 141 (4th Cir. 2017).
5 led to some jostling between Cansler and Hanks, with each man applying body pressure
against the other. At some point, Cansler jerked an arm upward, seeking to free it from
Hanks’s grip.
Officer Hanks soon began to tire and decided to escalate his use of force. He
pushed away from Cansler and stepped back from the police car, unholstering his taser in
the process. With Hanks no longer pressed against him, Cansler turned to face the
officer. Upon seeing the taser, Cansler raised his hands and turned back toward the
police car. With his back to Hanks, Cansler lowered his hands to the front of his body.
Hanks — believing that Cansler was about to retrieve the pocketknife — then tased
Cansler in the back.
2.
The jury also heard from two witnesses who had observed the altercation. Both
worked at a nearby cell phone store and had a clear view of the interactions between
Hanks and Cansler. One of them, Jimmy Blanco, video recorded part of the exchange.
Two versions of Blanco’s video — a real-time version and a slow-motion version —
were admitted into evidence. 3 The real-time video depicts a seven-second period of the
altercation, starting shortly before the taser deployment and ending shortly after it. The
video shows Cansler, with his back against a police car and his hands above his head,
facing Hanks. Hanks is pointing his taser at the ground with his left hand. Cansler then
3 At trial, Blanco and the other cell phone store employee, Giovanni Taylor, confirmed that Blanco made the video recording and that it accurately depicted the incident.
6 lowers his hands, turns around, and places his hands on the hood of the police car. As
Cansler is turning to face the vehicle, Hanks moves the unholstered taser to his right hand
and aims it at Cansler’s back. Hanks explained that in turning, Cansler made a series of
movements indicating “that [he] was trying to hide something.” See J.A. 213. 4 That is,
Cansler hid his hands, covered his right pocket, and looked toward that pocket. The
video then shows Cansler, who has his hands on the hood of the police car, turning his
head back toward Hanks and collapsing, having been tased.
3.
Officer Hanks called two expert witnesses who, having reviewed the video and
other evidence, confirmed the reasonableness of his actions in deploying and using the
taser. Hanks’s first expert, Joseph Stine, had been a police chief and an instructor on
topics that included the use of tasers. According to Stine, Hanks reasonably tased
Cansler based on the circumstances. As an expert on police practices and the use of
force, Stine recognized that the objective appropriateness of a policeman’s use of force
depends on the circumstances of the situation. He emphasized that the presence of a
weapon “changes the nature of [an] encounter” and can require an escalation of force.
See J.A. 249. Stine also confirmed that “active resistance” by a suspect — such as
Cansler tensing his muscles or turning around without being directed to do so — can
justify a force escalation. See id. at 255. Stine, who viewed the video of the incident,
4 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal.
7 stated that Cansler was at one point surrendering by raising his hands. Stine also opined,
however, that the presence of the knife and Cansler’s subsequent resistance — that is,
turning when not instructed to do so and obscuring his hands — justified the taser
deployment and usage. As Stine explained, under those circumstances, Cansler’s head
turn was “a threat” and Hanks’s response was reasonable. See id. at 278.
Hanks also called Officer Travis Schaney as an expert concerning the Fairfax
County Police Department’s use of force training program and, in particular, the taser
aspect of that program. As a certified taser instructor, Schaney explained how tasers
operate and the department’s general guidelines for taser usage. 5 Schaney emphasized
that, in order to be armed with a taser, Fairfax County police officers had to complete an
eight-hour instructional course and pass an examination containing written and practical
aspects. Hanks had completed the instructional course and passed the necessary exam. 6
C.
At the close of the evidence, the district court conducted a charge conference and
considered the contents of the jury charge. Pertinent to this appeal, the court addressed
5 In addition to explaining how tasers work, Officer Schaney reviewed the proper procedures and the training given to ensure proper usage. Schaney emphasized that the increased use of tasers among police officers in recent years has resulted in a decrease in injuries to suspects and officers. 6 During the trial, Cansler called five witnesses and presented several exhibits, seeking to counter the evidence of Officer Hanks. Among those witnesses, Cansler himself testified about the tasing incident, and an expert for Cansler opined that Hanks had used excessive force. Rejecting that evidence, the jury returned its verdict in favor of Hanks.
8 Cansler’s seventh proposed instruction, entitled “§ 1983 — Use of a Taser – Degree of
Force” (hereinafter “Instruction No. 7”). See J.A. 46. That instruction provided in full:
Deploying a [t]aser is a serious use of force that is designed to inflict a painful blow. It may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk that is reasonably likely to be cured by using the [t]aser.
See id.
Arguing against Instruction No. 7, counsel for Officer Hanks contended that it
would unfairly bolster Cansler’s case. He maintained that the instruction was
unnecessary in light of the other instructions to be given. That is, Instruction No. 7 was
not needed because the jury had to apply the objective reasonableness standard specified
in the Supreme Court’s Graham decision, and had to assess the taser usage under the
totality of the circumstances. In response, Cansler explained that Instruction No. 7 stems
“from a recent Fourth Circuit case discussing the level of force that a [t]aser is.” See J.A.
336. Cansler argued that Instruction No. 7 needed to be given because it was a binding
legal principle concerning a claim of excessive force when a taser is involved.
The district court disagreed with Cansler and declined to give Instruction No. 7.
As the court related, the jury had heard extensive evidence regarding the amount of force
inflicted by a taser. The court stressed that the jury had on several occasions reviewed
the video recording of Officer Hanks tasing Cansler. But the court acknowledged
Cansler’s objection and stated that his lawyer could argue to the jury that a single factor
of the objective reasonableness assessment should be paramount.
9 After addressing other aspects of the jury charge, the district court returned to
Instruction No. 7. The court emphasized that the rejected instruction — as well as
another proposal that touched on whether Cansler had surrendered to Officer Hanks —
were “subsumed” in the court’s objective reasonableness instruction on excessive force.
See J.A. 338. In particular, the court explained that an instruction would be given about
“the factors that should be considered” in assessing the excessive force claim. See id.
According to the court, Instruction No. 7 unnecessarily “highlight[ed] one fact versus
another fact” and could lead the jury to improperly limit the factors that it considered.
See id. The court again explained that it was for the lawyers — not the court — to
persuade the jury as to which of the relevant factors were determinative.
The jury charge advised, inter alia, that the jury was to examine the totality of the
“circumstances shown from the evidence received,” as required by the objective
reasonableness standard. See J.A. 347. The court explained that the jury “may consider”
various factors, including “the threat reasonably perceived by Officer Hanks” and
“whether Mr. Cansler posed an immediate threat to the safety of Officer Hanks or
others.” See id. at 347-48. 7 After extended deliberations, the jury returned its verdict in
7 The district court specifically charged the jury that it had to decide whether Officer Hanks’s use of force was reasonable “in light of all the evidence received.” See J.A. 347. In relevant part, the court explained the inquiry as follows:
You must determine the degree of force that a reasonable and prudent officer would have applied in effecting the arrest under the circumstances shown from the evidence received in this case. You should consider all of the relevant facts and circumstances leading up to the time of the use of the [t]aser that Officer Hanks reasonably believed to be true at the time of the (Continued) 10 favor of Officer Hanks, finding that he had not contravened Cansler’s Fourth Amendment
right to be free from excessive force.
D.
After the jury returned its verdict in favor of Officer Hanks, Cansler moved in a
timely manner for judgment as a matter of law, pursuant to Rule 50(b). 8 In supporting
that motion, Cansler argued that the video recording established that he did not pose a
threat to Hanks or anyone else. Furthermore, Cansler maintained that Hanks had offered
only speculation — that is, what Cansler might have been planning to do, and what he
might have possessed — to justify the taser usage. According to Cansler, the evidence
was not sufficient for a reasonable jury to return a verdict in favor of Hanks.
use of the [t]aser. You should consider those facts and circumstances in order to assess whether there was a need for the use of the [t]aser, and the relationship between the need for the force and the amount of force applied.
In determining whether Officer Hanks used excessive force, you may consider: [T]he severity of the crime at issue, the extent of the injury suffered by Mr. Cansler, the need for the application of force, the relationship between the need and the amount of force used, the threat reasonably perceived by Officer Hanks, whether Mr. Cansler posed an immediate threat to the safety of Officer Hanks or others, [and] whether Mr. Cansler was actively resisting or attempting to evade arrest by flight.
See id. at 347-48. 8 Cansler titled his Rule 50(b) motion as a “Motion for Judgment Notwithstanding the Verdict.” Although a prior version of Rule 50(b) used that terminology, Rule 50(b) now refers to a “renewed motion for judgment as a matter of law.” See Fed. R. Civ. P. 50(b); see also Vollrath Co. v. Sammi Corp., 9 F.3d 1455, 1458 n.2 (9th Cir. 1993) (describing change in terminology).
11 The district court denied Cansler’s post-trial Rule 50(b) motion and explained that
there was sufficient evidence for the jury to “conclude that [Officer Hanks’s] use of force
was reasonable under the totality of circumstances.” See J.A. 54. The court stated that
the reasonableness of Hanks’s use of force “was hotly contested at trial” and that the jury
heard ample evidence on the issue. See id. The court reiterated that the jury had
reviewed the video recording of the tasing “many times,” and that the jurors also saw
photo frames from that recording. See id. In sum, the court determined that “the jury’s
conclusion was reasonable based on the evidence at trial.” See id. at 55.
E.
Following the district court’s denial of his Rule 50(b) motion and its related entry
of judgment, Cansler noted his appeal. 9 Although neither party has questioned appellate
jurisdiction, we have examined that question sua sponte. After conducting an appropriate
analysis, we are satisfied that jurisdiction exists for this appeal, pursuant to 28 U.S.C.
§ 1291. 10
9 When the district court tried the first count to the jury, the court had already dismissed without prejudice the third count of the complaint. The court had also awarded summary judgment to Fairfax County and its chief of police on the second count. On appeal, Cansler does not challenge either the dismissal of the third count or the summary judgment award on the second count. 10 In dismissing the third count of the complaint without prejudice, the district court gave Cansler leave to amend. Cansler did not amend, however, and no further action was taken on the third count. A dismissal without prejudice is not typically a final decision within the meaning of 28 U.S.C. § 1291. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). In appropriate circumstances, however, we take “a practical approach to finality.” See Williamson v. Stirling, 912 F.3d 154, 170 (4th Cir. 2018) (citation and internal quotation marks (Continued) 12 II.
We review for abuse of discretion a district court’s decision “to give or refuse to
give a jury instruction.” See United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009).
Under that standard, a trial court errs if it declines to give an instruction that “‘(1) was
correct; (2) was not substantially covered by the court’s charge to the jury; and (3) dealt
with some point in the trial so important, that failure to give the requested instruction
seriously impaired’” a party’s ability to put on his case. See Noel v. Artson, 641 F.3d
580, 586 (4th Cir. 2011) (quoting United States v. Lighty, 616 F.3d 321, 366 (4th Cir.
2010)). We are obliged to “holistically” examine a claim that an instruction was
improperly rejected, viewing it in context of the jury charge as given. See id. In short, a
party challenging a trial court’s decision not to give a proposed instruction “faces a heavy
burden.” See id.
We review de novo the denial of a Rule 50(b) motion for judgment as a matter of
law. See U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d 131,
141 (4th Cir. 2017). In conducting that review, we give the nonmoving party the “benefit
of every legitimate inference in [his] favor.” Id. (quoting Cline v. Wal-Mart Stores, Inc.,
144 F.3d 294, 301 (4th Cir. 1998)). We will therefore affirm the denial of a Rule 50(b)
omitted). Under the doctrine of cumulative finality, we exercise appellate jurisdiction “where all claims as to all parties are disposed of while the appeal is pending, and where the district court could have certified the challenged order for immediate appeal pursuant to Federal Rule of Civil Procedure 54(b).” See id. While this appeal was pending, Cansler filed a notice of dismissal with prejudice of the third count. In the circumstances, we possess § 1291 jurisdiction. See Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 479 (4th Cir. 2015).
13 motion if there was evidence “upon which a jury could reasonably return a verdict for
[the nonmoving party].” Id. (citation and internal quotation marks omitted). In
performing our de novo review, we do not reweigh the evidence or make determinations
of credibility. See First Union Commercial Corp. v. GATX Capital Corp., 411 F.3d 551,
556 (4th Cir. 2005).
III.
On appeal, Cansler contends that the district court erred in two respects. First, he
maintains that the court erred in declining to give Instruction No. 7 as part of the jury
charge. Second, Cansler contends that the court erred in failing to award him a Rule
50(b) post-trial judgment as a matter of law. We will now address and resolve those
contentions.
In arguing that the district court erred in declining to give Instruction No. 7,
Cansler initially maintains that his proposal satisfied the first of the three elements of our
examination. That is, pursuant to Noel v. Artson and other decisions on that three-
element assessment, he insists that Instruction No. 7 was a correct statement of law. See
641 F.3d 580, 586 (4th Cir. 2011). He contends that Instruction No. 7 accords with, and
stems from, our decision in Yates v. Terry, 817 F.3d 877 (4th Cir. 2016). We therein
affirmed — on a summary judgment record — a denial of qualified immunity to a police
14 officer who had used a taser before being confronted by an immediate danger. Relying
primarily on Yates, Cansler argues that, as a matter of law, a police officer must face an
immediate safety risk to justifiably use a taser. Cansler therefore maintains that the court
had to instruct the jury that Officer Hanks’s taser use was only reasonable if he was
facing an immediate safety risk. Because the jury charge identified an immediate safety
risk as a permissible factor in assessing whether the use of a taser was reasonable —
instead of as a “mandatory” requirement — Cansler contends that the charge erroneously
“omitted the operative legal standard” specified in Yates. See Br. of Appellant 34.
As explained below, Cansler’s contention misapprehends controlling precedent.
We have never required a trial court to instruct a jury that a police officer must confront a
dangerous situation in order to reasonably use a taser. And such a decree would conflict
with the applicable multi-factor analysis for resolving claims of excessive force. The
pertinent decisions undercut Cansler’s contention and support the rejection of Instruction
No. 7.
(1)
In its seminal decision in Graham v. Connor, the Supreme Court mandated that
excessive force claims must be assessed under an “objective reasonableness” standard.
See 490 U.S. 386, 388 (1989). Applying that standard, the finder of fact — here, the jury
— must compare the degree of force a reasonable officer would have applied to the
degree of force actually used. In order to determine the amount of force a reasonable
police officer would have applied, the Supreme Court’s multi-factor balancing analysis
“requires careful attention to the facts and circumstances of each particular case.” See id.
15 at 396. The objective reasonableness standard turns on, inter alia, “the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the officers
or others, and whether [the suspect] is actively resisting arrest or attempting to evade
arrest by flight.” See id. In identifying those factors as part of its balancing analysis, the
Court acknowledged that the objective reasonableness standard “is not capable of precise
definition or mechanical application.” See id. (citation and internal quotation marks
omitted).
Nearly twenty years later, the Supreme Court again emphasized that its objective
reasonableness standard for excessive force claims requires the use of the multi-factor
balancing analysis, instead of a formalistic or rigid test. In its 2007 decision in Scott v.
Harris, the Court rejected an effort to “prescrib[e] certain preconditions” for a police
officer’s use of reasonable force. See 550 U.S. 372, 382 (2007). Under the proposed
standard repudiated in Scott, a suspect would have to pose “an immediate threat of
serious physical harm to the officer or others” for a deadly use of force to be reasonable.
See id. But the Court rejected that proposition and emphasized that the courts “must still
slosh [their] way through the factbound morass of ‘reasonableness.’” See id. at 383.
Thus, in evaluating excessive force claims, there is no “magical on/off switch that
triggers rigid preconditions” for a police officer’s use of force. See id. at 382. Instead, as
the Court explained, “all that matters is whether [an officer’s] actions were reasonable.”
See id. at 383.
Although neither Graham nor Scott addressed a taser usage, those decisions
control our analysis of excessive force claims, such as the one being pursued by Cansler.
16 That is, we assess an excessive force claim under Graham’s multi-factor balancing
assessment, and we do not apply “magical on/off switch[es]” or “rigid preconditions” in
evaluating the reasonableness of a use of force. See Scott, 550 U.S. at 382.
(2)
Against the backdrop of Graham and Scott, we have recently examined excessive
force issues premised on taser usage in decisions relied on by Cansler, that is, Estate of
Armstrong ex rel. Armstrong v. Village of Pinehurst, 810 F.3d 892 (4th Cir. 2016) and
Yates. In Armstrong, police officers repeatedly tased a mentally ill man who had not
complied with their directions to unwrap himself from a stop sign. Armstrong died
shortly thereafter, and his estate sued under § 1983, alleging that the tasings constituted
excessive force and violated the Fourth Amendment. The district court awarded
summary judgment to the officers, predicated on qualified immunity. On appeal, we
applied Graham’s multi-factor analysis to the summary judgment record and explained
“that tasers are proportional force only when deployed in response to a situation in which
a reasonable officer would perceive some immediate danger that could be mitigated by
using the taser.” See Armstrong, 810 F.3d at 903. Viewing the facts in the light most
favorable to Armstrong, the tasings were deemed to be prima facie unreasonable, and
thus a Fourth Amendment violation. We nevertheless affirmed the qualified immunity
awards made because the constitutional right was not clearly established.
A few months after Armstrong, we rendered our decision in Yates. We therein
reviewed yet another summary judgment record and the denial of a qualified immunity
claim of a police officer. Yates had been stopped for a minor traffic violation and failed
17 to present a valid driver’s license. After ordering Yates out of his vehicle, the officer
tased Yates twice, first while his hands were on the roof of his car and then again after he
had fallen to the ground. Applying the Graham multi-factor analysis — and viewing the
facts in the light most favorable to Yates — we deemed the tasings to be a prima facie
use of excessive force that contravened the Fourth Amendment.
The Yates decision reiterated Armstrong’s ruling that a taser “‘may only be
deployed when a police officer is confronted with an exigency that creates an immediate
safety risk.’” See Yates, 817 F.3d at 886 (quoting Armstrong, 810 F.3d at 909). Because
Yates was pulled over for a minor infraction, was unarmed, and was not trying to flee or
resist, multiple taser applications were “not objectively reasonable in light of the totality
of the circumstances.” See id. Viewing the facts in favor of Yates, we ruled that the
officer’s actions justified the denial of qualified immunity and warranted a trial on the
merits.
With that legal background in mind, we return to Cansler’s contentions regarding
Instruction No. 7. Cansler maintains that Armstrong and Yates required the district court
to instruct the jury in accordance therewith. According to Cansler, Instruction No. 7 is
the only correct statement of the applicable law for claims of excessive force with a taser.
This contention fails for several reasons.
First, in both Armstrong and Yates, we applied the Graham balancing analysis to
the factual predicates presented, just as the district court instructed the jury to do here.
18 See Yates, 817 F.3d at 886 (“Our analysis of the Graham factors . . . leads us to conclude
that such force was not objectively reasonable in light of the totality of the circumstances
in this case.”); Armstrong, 810 F.3d at 901-06 (applying Graham factors and concluding
that use of force was unreasonable). Unlike the factual predicate in this case, the
Armstrong and Yates panels were obliged to accept the facts in favor of those plaintiffs.
The jury charge in this case contained the legal standard utilized in both Armstrong and
Yates — that is, the objective reasonableness standard required by the Supreme Court in
Graham — and the factual findings were left for the jury to determine.
Second, neither Armstrong nor Yates requires a trial court to instruct on the legal
conclusions reached in those decisions. In fact, neither of those decisions addressed an
issue concerning jury instructions. They addressed the propriety of qualified immunity
awards in summary judgment proceedings. And appellate opinions do not necessarily
translate into mandated jury instructions. In Noel v. Artson, we rejected the contention
that the trial court had erred in only charging the jury on objective reasonableness —
based on Graham — to assess an excessive force claim. See 641 F.3d at 593. The Noel
plaintiff challenged that instruction and argued that the court should have given another
instruction, based on an opinion in an earlier case. The other instruction would have
advised the jury that an officer’s justification for using force can be abated during an
altercation. We rejected that proposition, explaining that appellate “opinions are not jury
instructions, nor are they meant to be.” See id. at 588. Instead, such opinions “articulate
19 general principles of law” that “may guide a district judge’s discretion when formulating
jury instructions.” See id.
As we emphasized in Noel, trial judges possess “‘much discretion’” in crafting
instructions, and our appellate decisions do not usurp their exercises of discretion. See
Noel, 641 F.3d at 586 (quoting Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994)). We
explained that judges possess the flexibility — in explaining the objective reasonableness
standard applicable to excessive force claims — to charge a jury without creating the
confusion that could result “‘from a discussion of the specific contentions in a case.’”
See id. at 588 (quoting Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1294-95 (4th Cir.
1995)). The Noel decision thus ruled that the trial court had properly charged the jury by
identifying permissible factors for assessing the reasonableness of the force that was
utilized. That instruction was consistent with Graham and left room for the lawyers to
argue to the jury the specific factors they deemed determinative.
(3)
Third, the facts of this case are materially different from those underpinning
Armstrong and Yates. Neither of those decisions involved an armed person who had
committed a criminal offense and then fled. Armstrong was unarmed, mentally ill, and
the subject of an involuntary commitment order. Yates was suspected of committing a
minor infraction, was unarmed, and had complied with the officer’s instructions. Those
circumstances stand in stark contrast to the situation confronted by Officer Hanks.
Cansler had committed a criminal offense, possessed a knife, and fled the scene. He then
concealed his hands multiple times (after being instructed not to do so), and he resisted
20 Hanks’s efforts to detain him. Those materially different circumstances — which relate
to the objective reasonableness assessment — show that Armstrong and Yates are not
controlling. See Noel, 641 F.3d at 588 (explaining that factually distinguishable opinions
“cannot mechanically supply jury instructions”).
Put succinctly, neither Armstrong nor Yates established a rule for taser usage that
is applicable to every situation. Although Instruction No. 7 could be a correct legal
statement in limited circumstances, Armstrong and Yates do not usurp a trial judge’s
obligation to give a jury charge that complies with Graham.
Assuming that Instruction No. 7 was correct, however, Cansler’s appellate
contention is unavailing and fails under Noel’s second element of instructional error. Put
simply, the jury charge of the district court “substantially covered” Instruction No. 7, and
the court gave a sound rationale for its exercise of discretion.
In identifying the various factors that the jury could consider, the charge explicitly
included “the threat reasonably perceived by Officer Hanks” and “whether Mr. Cansler
posed an immediate threat to the safety of Officer Hanks or others.” See J.A. 348.
Notwithstanding the district court’s rejection of Instruction No. 7, the charge advised the
jury that the presence of a safety risk is an important consideration in an assessment of
objective reasonableness. And Cansler acknowledges that the jury charge was “an
accurate statement of the law,” based on Graham. See Br. of Appellant 39. With that
admission, the court could not have abused its discretion in rejecting Instruction No. 7.
21 See United States ex rel. Oberg v. Penn. Higher Educ. Assistance Agency, 912 F.3d 731,
739 (4th Cir. 2019) (ruling that court did not err in rejecting proposed instruction when
charge substantially covered the issue); United States v. Passaro, 577 F.3d 207, 221 (4th
Cir. 2009) (concluding that court properly declined requested instruction where charge
accounted for the issue).
The district court carefully explained its bases for declining to give Instruction No.
7. As the court reasoned, that proposal would simply highlight “one fact versus another
fact” and could lead the jury to focus exclusively on only one aspect of the evidence. See
J.A. 338. And Cansler, unlike the tased plaintiffs in Armstrong and Yates, actually
possessed a weapon — a fact that could weigh heavily in the objective reasonableness
assessment. The court explained that its rejection of Instruction No. 7 did not preclude a
jury argument on the issue. Indeed, the court reminded counsel that it was their
prerogative to convince the jury of the factors that might be determinative. As the court
emphasized, the jury charge “subsumed” the concerns addressed in Instruction No. 7 and
covered those concerns in the various factors that the jury was entitled to consider. See
J.A. 338. In these circumstances, the court’s ruling was a proper exercise of the
discretion reserved to trial judges with respect to jury instructions. 11
11 Because Cansler’s challenge certainly fails on the second element of Noel’s three-element assessment, we need not consider the third element — whether the proposed instruction “dealt with some point in the trial so important” that it “seriously impaired” his case. See Noel, 641 F.3d at 588-89 (concluding that challenge to rejected instruction failed); see also Passaro, 577 F.3d at 222 (ruling instructional challenge failed on second element and not analyzing third element).
22 B.
Turning to Cansler’s second contention of error, he maintains that the district court
erred in failing to grant his Rule 50(b) motion for judgment as a matter of law.
Accepting the objective reasonableness standard, Cansler argues on appeal that the
evidence does not support the jury verdict in favor of Officer Hanks. According to
Cansler, his actions after his “surrender gesture”— that is, placing his hands above his
head as he faced Hanks — undermined any legitimate reason for Hanks to use the taser.
See Br. of Appellant 41-42. Relying on the video recording, Cansler emphasizes that he
did not reach for his pockets as he turned, that his hands were “open and empty at all
times,” and that he was tased only three seconds after placing his hands above his head.
See id. at 42-43. Cansler thus argues that the justification given by Hanks does not show
that his taser usage was reasonable in the circumstances.
Simply stated, the jury was entitled to return a verdict in favor of Officer Hanks.
The jury repeatedly viewed the video, which showed that the pertinent events were
consistent with Hanks’s testimony. As Hanks explained, he knew that Cansler had a
knife in one of his pockets, and he repeatedly instructed Cansler to remove his hands
from those pockets. 12 In that circumstance, with Cansler’s repeated pocketing of his
hands and Hank’s inability to see Cansler’s hands as he faced the police car, Hanks could
reasonably fear that Cansler was retrieving the knife. And Stine — Hanks’s expert
12 Cansler admitted at trial that he had the knife in his pocket, and that Officer Hanks became aware of that fact during the stop. And Cansler did not deny that he had inserted his hands into his pockets during the incident.
23 witness on the use of force — confirmed that Hanks had acted reasonably in perceiving a
threat and responding thereto. In short, there was ample evidence to support the jury’s
finding that Hanks did not use excessive force.
Although Cansler presented some evidence countering the presentation supporting
Officer Hanks, the jury was entitled to reject that evidence. Put succinctly, we are not
permitted to reweigh the trial evidence or assess witness credibility. In these
circumstances, we must affirm the district court’s denial of Cansler’s Rule 50(b) motion.
IV.
Pursuant to the foregoing, we reject Cansler’s contentions of error and affirm the
judgment in favor of Officer Hanks.
AFFIRMED